EXPLAINER: Can Sowore unilaterally discard Nigeria’s constitution as president?

It is the electioneering season in Nigeria once again, and one thing is, therefore, guaranteed: politicians will make all sorts of frivolous comments in an attempt to convince Nigerians to vote for them. Political campaigns for the 2023 general election officially commenced on 28 September 2022 and politicians for the various elective positions have been using the opportunity to address Nigerians and inform them why they should vote them into office in February and March 2022, respectively.

Omoyele Sowore, the presidential candidate of the African Action Congress (AAC), is one of the politicians who has been articulating his plans and proposed policies. Speaking at a town hall meeting organised for presidential candidates by the Arise News Channel and the Centre for Democracy and Development on 14 November, Sowore made a tendentious statement regarding the 1999 constitution (as amended).

“I will junket the 1999 constitution created by the military,” he said. “Let the Nigerian nation should create its own constitution. It will address the issue of state police.”

The AAC presidential candidate then added: “As soon as we win, we go to a constitutional Conference where we change (the) Nigerian constitution and we would subject it to referendum. Let Nigerians adopt a new constitution because the constitution as it is now is a fraudulent document created by the military. We didn’t create it but they put our name there and our signature – we the people of Nigeria. We are not there when they created this fraudulent constitution.”

Sowore’s comments, expectedly, elicited varied reactions from Nigerians. Some persons applauded him, but a good number of Nigerians rebuked him for making what they deemed as a reckless statement. Commenters questioned whether the president of the country has the powers under the current constitution to arbitrarily scrap the constitution, as initially suggested by the AAC presidential candidate. Others raised doubts about whether he is truly committed as a democrat or he is a militarised Nigerian in civilian clothing.

But first, what is a constitution? It is a collection of norms or standards according to which a country is governed. As with the case in Nigeria, the 1999 constitution which Sowore berates is a written document which defines and details the basic institutional framework of government, the relations between the rulers and the governed, the exercise of political power and the rights and duties of citizens among other important procedures.

So, what does the law say concerning the amendment or change of the 1999 constitution(as amended)? The process of amending or even changing the Nigerian constitution is rigorous and time-consuming. Section 9(2) and (3) stipulates how the constitution can be amended or changed.

Section 9(2): An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

This section simply states that an amendment to the constitution that does not involve any of the matters stipulated in Section 8 of the constitution shall be passed by a specified number of National Assembly members and subsequently endorsed by a prescribed number of the state houses of assembly. It is important to take cognisant of the stipulated numbers.

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A two-thirds majority of the 109-member Senate is 72 senators, a two-thirds majority of the House of Representatives is 240 out of 360 members and two-thirds of the 36 state Houses of Assembly is 24. This sub-section, therefore, already quashes the notion that the President, who is a member of the executive arm of government, can arbitrarily discard the constitution, as posited by Sowore. Instead, it is only a specified number of federal legislators from both houses and state legislators that have the legitimate power to make any alterations to the constitution as it is presently framed.

Section 9(3): An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than (a) four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.

This third sub-section of Section 9 is pretty straightforward in terms of how an alteration to certain sections of the constitution can be conducted. First of all, Section 8 of the constitution is repeated but this time, it is considered as a proviso alongside Chapter IV of the same legal document.

Section 8 emphasises the following:

• Creation of a new state
• Boundary adjustment of a state and local government
• Creation of a new local government

On the other hand, Chapter IV of the same constitution (sections 33-46) spells out the fundamental human rights of Nigerians and residents in the country which must be respected by the government, as well as the responsibilities that must be adhered to by citizens and residents in the country.

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Again, this sub-section, just like the preceding one, stipulates that it is only the federal and state legislators, not the President, that can alter the legal document. However, due to the sensitive and delicate nature of these issues, the constitution imposed a higher threshold for the National Assembly members to attain. Taking a look at the numbers stipulated in this sub-section, four-fifths of the legislators in both federal houses of parliament are required to vote for the constitutional alteration.

Four-fifths of 109 senators is 87, while it is 288 members out of the 360 legislators that make up the House of Representatives. The third component remains two-thirds of the 36 state Houses of Assembly, which means that 24 state legislative houses must endorse the proposal for the constitutional amendment. Once more, this sub-section does not confer the President with the power to make any alteration of any kind, contrary to the brash position of the AAC presidential candidate.

It has to be reemphasised that the number of legislators stipulated to approve any alteration to the constitution is sacred. This is because Section 9(4) of the constitution states that “…the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution”. The number of members specified, as mentioned earlier in this piece, consists of the entire members of the National Assembly: 109 members of the Senate (three Senators from each State and one from the Federal Capital Territory) and 360 members of the House of Representatives.

From the explanation above, the process to alter, amend or change any text of the Nigerian constitution, which is rigid in type, is a stringent process. The complicated process was imposed by the framers of the constitution to ensure that the constitution, which is the “grundnorm” and the supreme law of the land, is not easily altered or modified by any single leader at his or her whims and caprices.

The limitation was also promulgated to ensure that the constitution is not easily changed and that the modifications are done only after careful thought and consideration, and not a process done wantonly. The protection and stability of the law and the country itself were also contemplated by the framers of the constitution when they attached the proviso to Section 9.

CONCLUSION: While there are valid arguments and differences of opinion over the validity and efficacy of the 1999 constitution (as amended) and talks of political exigency to alter or overhaul the legal document, the self-assertive position made by Sowore that he will if elected as President, “junket the constitution” is misleading, unknown to the law and alarming.

What he should have probably said in his subsequent aforementioned statement is that he will work with the National Assembly to amend Section 9 to allow for a total overhaul of the constitution, instead of the partial or piecemeal amendment of the legal document as it is currently done.

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