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The National Assembly’s power to replace the Nigerian Constitution: An analysis of Professor Ben Nwabueze’s arguments

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Introduction

A bill titled “A Bill for an Act to substitute the annexure to Decree 24 of 1999 with a new governance model for the Federal Republic of Nigeria” has been circulating online for some time. Drafted by Dr. Akin Fapohunda, the bill proposes a new Constitution to be cited as “The Constitution of the Federal Republic of Nigeria New Governance Model for Nigeria Act 2024.” It suggests that the National Assembly has the authority to replace the 1999 Constitution with a new constitution. This proposition has sparked a debate about whether the National Assembly truly possesses the power to replace the existing Constitution. This article explores this issue, drawing on the arguments[1] presented by the distinguished constitutional law expert, Professor Ben Nwabueze.

Read also: APC government not living according to tenets of Nigerian Constitution – Ishaku

The Nature of the National Assembly’s Legislative Powers

The Constitution of the Federal Republic of Nigeria, in Section 4, vests legislative powers in the National Assembly, which comprises the Senate and the House of Representatives. According to Prof. Nwabueze, these powers are threefold:

1. The power to legislate on behalf of the Federal Republic of Nigeria

2. The power to legislate for the Federation to ensure peace, order, and good government

3. The power to legislate for the Federal Capital Territory

The latter two powers are explicitly defined in the Constitution, with the areas of legislation listed in Section 299 and the Exclusive and Concurrent Legislative Lists. However, the first power—the authority to legislate on behalf of the Federal Republic—is more ambiguous and has been subject to various interpretations.

Distinguishing Between the Federal Republic and the Federation

A core pillar of Prof. Nwabueze’s argument rests on the distinction between the “Federal Republic of Nigeria” as a sovereign nation-state, and the “Federation” as the collection of component units that make up Nigeria (i.e., the states and the Federal Capital Territory).

He draws attention to Section 2 of the Constitution, which separately defines these two entities. Section 2(1) describes Nigeria as “one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria,” while Section 2(2) states that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”

With this distinction in mind, Prof. Nwabueze interprets Section 4(1) of the Constitution, which vests the legislative powers of the Federal Republic of Nigeria in the National Assembly, as granting the Assembly the power to legislate on matters related to Nigeria’s national sovereignty. Meanwhile, he sees Section 4(2), which empowers the National Assembly to make laws for the peace, order and good government of the Federation, as pertaining to legislation that impacts the component units of the Federation.

The Scope of the Power to Legislate for the Federal Republic

If one accepts Prof. Nwabueze’s interpretation, the logical next question is: under what circumstances can the National Assembly legitimately invoke its Section 4(1) powers to legislate for the Federal Republic as a whole, rather than just the Federation? Dr. Olisa Agbakoba SAN, expanding on Prof. Nwabueze’s paper, provides some insights. He suggests that this power could be exercised in times of grave national importance or when there is an existential threat to the corporate existence of the Federal Republic. He cites examples such as the invocation of the “Doctrine of Necessity” in 2010 to appoint Goodluck Jonathan as Acting President following the incapacitation of then-President Umaru Yar’Adua, and the potential creation of a new constitution, given its far-reaching implications for the nation[2].

The Debate on Replacing vs Altering the Constitution

This brings us to the crux of Prof. Nwabueze’s argument: the National Assembly’s power to not just alter but completely replace the Constitution.

Nigeria has been on a journey to find a suitable model that will give the constitution acceptability and legitimacy. The country has considered National Conferences, which failed. The present model of alteration of the Constitution has not worked. It has cost so much, taken far too long, and failed to win popular and legitimate acceptance. Prof. Nwabueze suggests a third model: wholesale constitutional replacement.

In advocating for this third model, Prof. Nwabueze makes a distinction between “sovereign” constitutions, which are written by the people through a Constituent Assembly or similar body, and “statutory” constitutions, which are enacted by a sovereign parliament. He points out that all of Nigeria’s constitutions to date have been statutory in nature. The 1960 Independence Constitution was a schedule to an Order-in-Council of the British Government, the 1963 Republican Constitution was enacted by parliament simply repealing the 1960 Order-in-Council and replacing it with a new constitution, and the 1979 and 1999 Constitutions were schedules to military decrees.

Professor Nwabueze’s Argument for Replacement

Building on this, Prof. Nwabueze argues that the National Assembly has the power to repeal the current 1999 Constitution, which was enacted via Decree 24 of 1999, and replace it in its entirety with a new constitution. He believes this power derives from Sections 4(1) and 315(1)(a) & (4) of the Constitution.

Section 315(1)(a) provides that an existing law shall be deemed an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws. Prof. Nwabueze contends that since the National Assembly has the power under Section 4(1) to legislate for the Federal Republic, and the 1999 Constitution (Promulgation) Decree is a law on a matter the National Assembly can legislate on, it can therefore repeal and replace the decree, and by extension, the Constitution.

Conclusion

Professor Ben Nwabueze’s analysis provides a fresh and thought-provoking perspective on the extent and limits of the National Assembly’s legislative powers, particularly as they relate to the Constitution. His arguments around the Assembly’s unique power to legislate for the “Federal Republic” as distinct from the “Federation,” and its ability to unilaterally replace the constitution, are novel and merit serious consideration. However, these arguments are likely to remain contentious and generate further debate on this crucial issue.

As Nigeria continues to grapple with the challenges of governance and the search for a suitable constitutional model, the ideas put forth by Prof. Nwabueze will undoubtedly play a significant role in shaping the discourse. While the ultimate resolution of this debate remains to be seen, one thing is certain: the question of the National Assembly’s power to replace the Constitution will continue to be a central focus of Nigeria’s constitutional development in the years to come.

Okeke is an Associate Partner and Head of Government Relations and Public Sector Practice at Olisa Agbakoba Legal.