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CONSTITUTIONALISM AND THE CHALLENGES OF DEMOCRATIC GOVERNANCE IN NIGERIA.

 Format: MS WORD   Chapters: 1-5

 Pages: 150   Attributes: COMPREHENSIVE RESEARCH

 Amount: 5,000

 Feb 13, 2020 |  04:03 pm |  1467

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.[1] However, the realities of communalism[2] 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.[3]

 

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.[4] 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,[5] 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.[6] 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.,[7] 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.[8]

 

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.[9] 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.[10] 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.[11]

1.2.      Statement of the Problem

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.[9] 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.[10] 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.[11]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.[9] 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.[10] 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.[11]

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. Are there viable components and dynamics of constitutionalism in Nigeria?
  4. Are 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 militocracy 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.

1.8.      Literature Review

Since independence Nigeria has laboured under the huge burden of European models of governance. Many scholars have written on the democratisation of Nigeria and the need to ensure the supremacy of the constitution. However, it appears that none has actually examined the challenge of democracy in the light of the prevailing constitutional demands on governance. Nwabueze explains that a constitution, having the force of law but containing admixture of justiciable and non-justiciable commands raised problems of how to identify one from the other and calls for an act of interpretation by the court independent of the assertion of political department.[12] Anozie[13] states that the constitution of a country is enacted for the purpose of establishing a particular system of government and also for prescribing limitation on organs of government so established.[14] Anozie rationalises on why countries adopt a constitution thus:

 

The main reason is that most times people will want to secure and protect their fundamental rights and freedom from the state power or the arrangement of the government amongst the people may be such that the minority may like to protect their specific interest against the rule of majority and this can be best done when these rules are articulated in a written form in a constitution so that the government may not in the exercise of its powers act contrary to the dictates of the constitution and where it even does so, the governmental act could be successfully challenged in the appropriate quarters.[15]

 

This elucidation by Anozie appropriately captures the motivation behind every constitution. It is to ensure that there are standards that must be followed in the governance of a country. Nwabueze concludes that no society in which morality and religion are absent can ever attain and maintain liberty, democracy and justice. Liberty, democracy and justice are actually morality-based values.[16] Obedience to the constitution is the starting point of any discussion on the rule of law as propounded by Dicey. Although Sagay has argued that the rule of law is no longer limited to Dicey’s narrow definition of equality before the law or trial by one’s peers in the ordinary courts by the ordinary laws.[17]

 

Ladan[18] attributes Nigeria’s constitutional problem to accident of history. He explains that the Nigerian legal system follows the English common law system whose conception of man is that of a reasonable being, with the rights and duties of such a being. Ladan reveals that Nigeria is going through an accelerated process of economic and socio-political changes against the background of a traditional culture characterized by a subsistence economy. He concludes that:

 

The on-going socio-political and economic changes are inevitable but what cannot be pre-determined are the means by which they can be effected and the direction of such far-reaching changes. To achieve result it is imperative that the changes should be accomplished by law rather than revolutionary violence.[19]

 

It is for this need to accomplish change by law that the constitution explicitly states that “This Constitution is supreme”.[20] The implication of this is that if any other law is inconsistent with the provisions of the 1999 Constitution, that other law shall be void to the extent of its inconsistency.[21]

 

The Constitution has gone a long way in making provisions for the effective governance of Nigeria in a democratic setting. It shared vividly the powers of government to the three arms of government in a very clear manner. Unfortunately Nigeria is still in bondage. This prompted Osagie[22] to write that Nigeria is a nation of all kinds of Mafia. But two types are the most prominent namely political mafia and economic mafia. He describes political mafia thus: “Those who call the shots at the different strata of governance and decide who gets what and when; who becomes governor or president; who gets ministerial job, who get appointed into what position”.[23] The second is the economic mafia. Osagie’s postulations clearly show that the problem of governance in Nigeria is not a problem of the law but that of the mafia’s grip on the Nigeria State.

 

Olowu[24] is worried about how to extricate the tripartite phenomena of constitutionalism, democracy and governance from the failures of the past. This, he maintains, constitutes one of the most important and fascinating tasks of our time.[25] He notes that the task lies in building a state in which governance rests on the foundation of both elite processes to maintain political settlements and societal efforts to hold those elites accountable from day to day. Olowu, therefore, concludes that any discourse on constitutionalism in Africa naturally engenders the inclusion of the concepts of governance and democratization.

 

Olowu clearly has given a roadmap on how best to tackle the challenges of democratic governance in Nigeria. However, it must be stated that governance can only be effectively done where there exists the rule of law. This absence of the rule of law is one factor that has firmly barricaded the advancement of Nigerian democratic governance. In Gwede v. INEC[26] Onnoghen JSC suggests the way out thus: “To overcome the present culture of impunity in the political environment all hands must be on deck particularly the hands of those entrusted with the responsibility of ensuring an even playing field for the political actors/gladiators, otherwise the future of our democracy is very bleak indeed”.[27]

 

Amadi[28] is of the view that governance is not just presidential or gubernatorial manner of conducting the policy and affairs of a state or people. Governance is administration at every level in establishments or institutions, whether in the public or private sector of the Nigerian enterprise.[29] Amadi contends that the rule of law is seemingly an unprincipled concept, tending to find comfort and fit into any type of organisation or government.[30] It is the rule of law that guarantees the political rights of an individual. Nwabueze maintains that rights constitute the intrinsic attributes of the human being, the essence of human personality.[31]



BIBLIOGRAPHY

 

TEXTBOOKS

Achebe, C., There was a Country, (London: Penguin Group, 2012).

 

Amadi, G. O. S., Political Jaywalking and Legal Jiggery-Pokery in the Governance of Nigeria:    Wherein Lies the Rule of Law?, (Inaugural Lecture), [Nsukka: University of Nigeria Senate     Ceremonial Committee, 2011].

 

Andrew, H., Politics, (London: Macmillan Press Limited, 1997).

 

Anozie, M. C., Notes on Nigerian Constitutional Law, [Enugu: Pymonak Printing and Publishing Company, 2000].

 

Barnett, H., Constitutional and Administrative Law, 4th edn., (London: Cavendish Publishing Limited, 2002).

 

Beetham, D. and Boyle, C. K., Introducing Democracy: 80 Questions and Answers, (Cambridge: UNESCO Publishing, 2002).

 

Diamond, L., Linz, J. J. and Lipset, S. M., Democracy in Developing Countries: Latin America, (Boulder: Lynne Rienner, 1989).

 

Egwummuo, J. N., Modern Trends in Administrative Law, (Enugu: Academic Publishing Company, 2004).

 

Elegido, J. M., Jurisprudence, (Ibadan: Spectrum Law Publishing, 2000).

 

Fearon, J. D. and Laitin, D. D., Nigeria: Random Narrative on Civil War Onset, (United Kingdom: Stanford University, 2006).

                                                                                          

Fehrenbacher, D. E., Constitutions and Constitutionalism in the Slaveholding South, [USA: University of Georgia Press, 1989].

Foundation Publishers Ltd., 1989).

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