Nigeria has a long history of constitution-making dating back to the 1914 Amalgamation Constitution. There were, for example, 4 colonial constitutions – Clifford Constitution 1922, Richard Constitution 1946, MacPhersons Constitution 1951, and Lyttleton Constitution 1954. These aforementioned constitutions had a lot in common, and each successive one was an improvement on the previous. The colonial constitution flowed seamlessly into the 1960 Independence Constitution, which flowed seamlessly into the 1963 Republic Constitution.

Constitution-making in Nigeria was to a pattern, one constitution evolving into the next, one constitution building on the one just past. Each evolution was construed to accommodate new developments. The 1963 Republic Constitution, for example, was made on the back of the 1960 Independence Constitution ‘Having freely resolved to establish the Federal Republic of Nigeria’.

The 1979 Constitution broke the mould. The military dictators replaced the collegiate system of government that had existed pre-1966, that is, before the first military coup, with an ‘elective dictatorship’. The 1979 Constitution, which was suspended in 1983, was resurrected on 5 May 1999 by military decree as the 1999 Constitution. In both the 1979 Constitution and its 1999 iterattion, Nigeria’s military dictators fashioned a constitution that had no pedigree in Nigeria.

Nigeria’s 1963 Constitution is unique in that it established Nigeria as a Republic, and gave Nigeria Republic laws. Section 2 of the said Constitution says:

‘Nigeria shall be a Federation comprising Regions and a Federal territory, and shall be a Republic by the name of the Federal Republic of Nigeria.’

The 1963 Republic Constitution is similar to the 1787 Constitution of the United States that established that country as a Republic. America’s 1787 Republic Constitution has remained the Charter of the US government since that time. Like the American constitution, the 1963 Republic Constitution was at all the material times Nigeria’s Charter of Government, and rule of law. Nigeria’s military dictators were on a frolic of their own when they promulgated the 1999 Constitution to change the Charter of Government. Nigeria’s military dictators had no standing in law to make that change.

The Republic had been established, and with Republic laws that were codified in writing, before Nigeria’s military dictators promulgated the 1999 Constitution. The legal authority and power to change the Republic constitution resided solely in the constitution that created the Republic. Legal authority and power could not lawfully reside anywhere else.  

Section 1 (Effect of this Constitution) of the 1963 Constitution says:

‘This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of section 4 of this Constitution, if any other law (including the constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.’

Just like America’s 1787 Republic Constitution, Nigeria’s 1963 Republic Constitution provided for exactly how the rules were to be amended, if needed. Authority to amend did not lie anywhere else.

Section 4 (Alteration of this Constitution) of the 1963 Constitution provides:

‘(1) Parliament may alter any of the provisions of this Constitution:

Provided that, in so far as it alters any of the provisions of this section, sections 1, 2, 5, 6, 17 to 36, 38, 41, 42, 43, 50, 51, 52, 62, 67 to 94, 104, 113, 115, 117, 119, 120, 122 to 125, 127, 129, 130, 133 to 147, 150, 152, 154 to 161, 166 and the Schedule to this Constitution or (in so far as they apply to any of those provisions) sections 66 and 165 of this Constitution, an Act of Parliament shall not come into operation unless each legislative house of at least two Regions has passed a resolution signifying consent to it having effect.’

Section 5(10) provides:

‘The provisions of this Constitution shall not be altered except in accordance with the provisions of this section.’

Nigeria is a Republic courtesy of the 1963 Republic Constitution. Without the said 1963 Constitution, there was no Republic. The 1963 Constitution owned the Republic. The 1963 Republic Constitution attached a Charter of Government to the Republic status that it had established. This Charter of Government could only be lawfully changed by following rules laid out in the 1963 Republic Constitution. The 1999 Constitution failed to follow the rules of the Republic, and is as a consequence, illegal, null and void.