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Published online by Cambridge University Press: 13 September 2021
This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.
1 The first era of military rule in Nigeria commenced on 15 January 1966 and ended on 1 October 1979, while the second era commenced on 31 December 1983 and ended on 29 May 1999.
2 See Constitution of the Federal Republic of Nigeria (Promulgation) Decree 24 1999 (now Cap. C23, Laws of the Federation of Nigeria, 2004) as altered by Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010; Constitution of the Federal Republic of Nigeria (Second Alteration) Act 2010; Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010; and Constitution of the Federal Republic of Nigeria (Fourth Alteration) Act (Nos 4, 9, 16, 21, & 27) 2017. All subsequent references to the Constitution or constitutional sections shall be to those of the CFRN 1999 (as altered) except where otherwise indicated.
3 See S Akinrinade, ‘Constitutionalism and the Resolution of Conflicts in Nigeria’ (2003) 92(368) The Round Table 41, 47: ‘Indeed, the 1999 Constitution cannot pass the crucial tests of acceptability and legitimacy that are crucial if it is to serve as a medium for the mediation and resolution of the various conflicts plaguing the Nigerian political system. The 1999 Constitution is inadequate on two major fronts: first, the process by which it was given and, second, the specific provisions in respect of several contentious issues at the centre of the various conflicts plaguing the political system.’
4 This is more particularly engaged with while discussing Loewenstein’s typologies of nominalist, semantic and normative constitutions in Part IV.
5 See, for example, ‘Notice of constitutional grievances, declaration of constitutional force majeure and demand for transitioning process for an orderly reconfiguration of the constitutional basis of the Federation of Nigeria’ (The Guardian, 21 January 2021), available at <https://m.guardian.ng/features/notice-of-constitutional-grievances-declaration-of-constitutional-force-majeure-and-demand-for-transitioning-process-for-an-orderly-reconfiguration-of-the-constitutional-basis-of-the-federation/amp>.
6 See TI Ogowewo, ‘Why Judicial Annulment of the Constitution of 1999 is Imperative for the Survival of Nigeria’s Democracy’ (2000) 44(2) Journal of African Law 135–66; JO Ihonvbere, ‘How to Make an Undemocratic Constitution: The Nigerian Example’ (2000) 21(2) Third World Quarterly 343, 346; KSA Ebeku, ‘Making a Democratic and Legitimate Constitution in Nigeria: Lessons from Uganda’ 17 Sri Lanka Journal International Law (2005) 183, 185–86; FT Abioye, ‘Constitution-Making, Legitimacy and Rule of Law: A Comparative Analysis’ (2011) 44(1) The Comparative and International Law Journal of Southern Africa 59, 73.
7 IA Ayua and DCJ Dakas, ‘Federal Republic of Nigeria’ in J Kincaid and GA Tarr (eds), Constitutional Origins, Structure, and Change in Federal Countries (McGill-Queen’s University Press, Montreal, 2005) 248.
8 ‘1999 Constitution, Responsible for Nigeria’s problems – Afe Babalola’ (The Punch, Lagos, 28 August 2019), available at <https://punchng.com/1999-constitution-responsible-for-nigerias-problems-afe-babalola>.
9 Ibid.
10 RE Barnett, ‘Constitutional Legitimacy’ (2003) 103 Columbia Law Review 111.
11 M Petrović, ‘Constitution and Legitimacy’ (2004) 2(1) Facta Universitatis (Series: Law and Politics) 7, 9.
12 Osipitan, T, ‘An Autochthonous Constitution for Nigeria: Myth or Reality? (University Press, Lagos, 2004) 35 Google Scholar.
13 The word ‘autochthony’ is of Greek descent, meaning ‘sprung from that land itself’. See FM Ssekandi, ‘Autochthony: The Development of Law in Uganda’ (1983) 5 New York Law School Journal of International & Comparative Law 1 2; PA Joseph ‘Foundations of the Constitution’ (1989) 4 Canterbury Law Review 58, 69. See also K Wheare, The Constitutional Structure of the Commonwealth (Oxford University Press, Oxford, 1960) 89.
14 de Visser, M and Bui, NS, ‘Glocalised Constitution-making in the Twenty-first Century: Evidence from Asia’ (2019) 8(2) Global Constitutionalism 297, 302 CrossRefGoogle Scholar.
15 Udombana, NJ, ‘Arise, o compatriots: An Analysis of Duties of the Citizen in the Nigerian Constitution’ (2002) 34 Zambia Law Journal 24, 27–28 Google Scholar.
16 Nwabueze, BO, The Presidential Constitution of Nigeria (C. Hurst, London 1982) 1–7 Google Scholar.
17 Udombana (n 15).
18 See Nigerian (Constitution) Order-in-Council 1960.
19 See Yakubu, JA, Trends in Constitution Making in Nigeria (Demyaks Law Books, Ibadan, 2003) 61 Google Scholar.
20 See Osipitan (n 12) 16–17.
21 Ige, B, Constitutions and the Problems of Nigeria (Nigeria Institute of Advanced Legal Studies, Lagos, 1995) 23 Google Scholar.
22 Ayua and Dakas (n 7) 248.
23 The simple truth is that there is currently no exact data on the number of ethnic groups in Nigeria. See EE Osaghae and RT Suberu, A History of Identities, Violence, and Stability in Nigeria, CRISE Working Paper No. 6 (January 2005), available at <www.gov.uk/dfid-research-outputs/a-history-of-identities-violence-and-stability-in-nigeria>. Different estimations given over the years include: 248 (JS Coleman, Nigeria: Background to Nationalism (University of California Press, Berkeley, CA, 1958)); 394 (C Hoffman, The Languages of Nigeria by Language Families (Mimeograph: Department of Linguistics, University of Ibadan, 1974)); 62 (GP Murdock, Outline of World Cultures (Human Relations Area Files, New Haven, CT, 1975)); 161 (A Gandonu, ‘Nigeria’s 250 Ethnic Groups: Realities and Assumptions’ in RE Holloman and SA Arutiunov (eds), Perspectives on Ethnicity (Mouton, The Hague, 1978)); 143 (TO Odetola, Military Politics in Nigeria: Economic Development and Political Stability (Transaction Books, New Brunswick, NJ, 1978)); 619 (R Wente-Lukas with the assistance of Adam Jones, Handbook of Ethnic Units in Nigeria (Wiesbaden: Franz Steiner, 1985)); 374 (O Otite, Ethnic Pluralism and Ethnicity in Nigeria (Shaneson, Ibadan, 1990)); and over 500 (PEFS, Ethnic Map of Nigeria, 7 vols (Programme on Ethnic and Federal Studies, University of Ibadan, Ibadan, 2001)). See also AR Mustapha, Ethnic Structure, Inequality and Governance of the Public Sector in Nigeria, UNRSID Programme Paper No. 24 (November 2006), available at <http://www.unrisd.org/80256B3C005BCCF9/httpAuxPages)/C6A23857BA3934CCC12572CE0024BB9E/$file/Mustapha.pdf>; FH Ayatse and AI Iorhen, ‘The Origin and Development of Ethnic Politics and its Impacts on Post Colonial Governance in Nigeria’ (2013) 9(17) European Scientific Journal 178, 178–79.
24 For example, in the following definition of an ethnic community by Anthony Smith, the psychological elements are typified by signal words such as ‘myths’, ‘memories’ and ‘sense of solidarity’, as opposed to pragmatic elements such as ‘common ancestry’, ‘shared history’, ‘common culture’ and ‘homeland’. Smith defines an ethnic community as ‘a named human population with myths of common ancestry, shared historical memories, one or more elements of a common culture, a link with a homeland and a sense of solidarity among at least some of its members’. See AD Smith, Nations and Nationalism in a Global Era (Polity Press, Cambridge, 1995) 56–57.
25 Osaghae, EE, Structural Adjustment and Ethnicity in Nigeria (Nordic African Institute, Uppsala, 1995) 11 Google Scholar.
26 Osaghae and Suberu (n 23) 8.
27 P Lewis and M Bratton, Attitudes Towards Democracy and Markets in Nigeria: Report of a National Opinion Survey, January–February 2000 (International Foundation for Election Systems and Management Systems International, Washington, DC, 2000) 24–25.
28 Osinubi, TS and Osinubi, OS, ‘Ethnic Conflicts in Contemporary Africa: The Nigerian Experience’ (2006) 12(2) Journal of Social Sciences 101 CrossRefGoogle Scholar, 102.
29 Project on Constitution Writing and Conflict Resolution, ‘Nigeria 1999’, available at <http://pcwcr.princeton.edu/reports/nigeria1999.html>.
30 The 1995 Constitution, drafted under the watch of Abacha, fizzled out into history as it was never promulgated.
31 For a detailed account of the committee’s work, see N Tobi, ‘The Legitimacy of Constitutional Change in the Context of the 1999 Constitution’, in AA Guobadia and A Adekunle (eds), Nigeria: Issues on the 1999 Constitution (Nigerian Institute of Advanced Legal Studies, Lagos, 2000) 21–42.
32 Different sectors of the Nigerian society said to have made presentations during the public hearings are the Organised Private Sector, Market Women Association, Nigerian Labour Congress, the Press, the Nigerian Medical Association, the Nigerian Society of Engineers, the Nigeria Police Force, the Students’ Union, the Nigerian Bar Association and the Judiciary. See Osipitan (n 12) 23.
33 Project on Constitution Writing and Conflict Resolution (n 29).
34 Ibid.
35 See Constitution of the Federal Republic of Nigeria (Promulgation) Decree 24 of 1999 (now Cap. C23, Laws of the Federation of Nigeria, 2004).
36 Obasanjo, O, Constitution for National Integration and Development (Friends Foundation, Lagos, 1989) 2 Google Scholar.
37 Ebeku (n 6) 183–86.
38 RH Fallon Jr, ‘Legitimacy and the Constitution’ (2005) 118(6) Harvard Law Review 1796.
39 C Bernal, ‘How Constitutional Crowdsourcing can Enhance Legitimacy in Constitution Making’ in D Landau and H Lerner (eds), Comparative Constitution Making (Edward Edgar, Cheltenham, 2019) 246.
40 See Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 2, 1993 (as amended by Decree No. 12, 1994); Attorney-General of the Federation v Guardian Newspapers Limited (1999) 9 NWLR 187.
41 Ibid 1795.
42 Ibid 1790–91.
43 See LL Fuller, ‘Positivism and Fidelity to Law’ (1958) 71(4) Harvard Law Review 630; J Feinberg, ‘Civil Disobedience in the Modern World’ (1979) 2 Humanities in Review 37; KE Himma, ‘Positivism, Naturalism, and the Obligation to Obey Law’ (1998) 36(2) Southern Journal of Philosophy 145.
44 Fallon Jr (n 38) 1796.
45 FI Michelman, ‘Ida’s Way: Constructing the Respect-Worthy Governmental System’ (2003) 72 Fordham Law Review 345, 346.
46 Ibid. See also J Habermas, Communication and the Evolution of Society (Thomas McCarthy trans., Beacon Press, Boston, 1979) 178, where Habermas contends that, ‘Legitimacy means a political order’s worthiness to be recognized.’
47 See also A Buchanan, ‘Political Legitimacy and Democracy’ (2002) 112 Ethics 689, 702 (arguing that consent cannot require compliance with grossly immoral commands) and J Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press, Cambridge, 1998) 152, 162–63 (arguing that consent cannot establish the legitimacy of authority in the absence of good reasons for that authority).
48 See, for example, A Hamilton, The Federalist No. 22 (that ‘THE CONSENT OF THE PEOPLE’ is the ‘pure, original fountain of all legitimate authority’). Also see Barnett (n 10) 117 (where he notes that ‘genuine consent, were it to exist, could give rise to a duty of obedience’); G Klosko, ‘Reformist Consent and Political Obligation’ (1991) 39 Political Studies 676, 676–77 (where he identifies the necessary conditions for consent to give rise to political obligation).
49 Rawls, J, A Theory of Justice (Belknap Press, Cambridge, MA, 1971)Google Scholar.
50 Ibid 11.
51 See Rawls, John, Political Liberalism (Columbia University Press, New York, 1993) 217 Google Scholar.
52 See Michelman (n 45) 353.
53 Raz (n 47) 173.
54 See also Copp, D, ‘The Idea of a Legitimate State’ (1999) 28 Philosophy and Public Affairs 3, 43–4CrossRefGoogle Scholar.
55 Barnett (n 10).
56 Ibid, 113.
57 Ibid.
58 Ibid.
59 Ibid, 145–46.
60 Ibid, 146.
61 Richard Kay, ‘The Creation of Constitutions in Canada and the United States’ (1984) 7 Canada United States Law Journal 111.
62 Kelsen, Hans, The Pure Theory of Law, trans Knight, M (University of California Press, 1967) 46–8CrossRefGoogle Scholar, 194–200.
63 Hart, HLA, The Concept of Law (Oxford University Press, Oxford, 1961) 103–05Google Scholar.
64 Kay (n 61) 121.
65 Ibid 118.
66 See Herman, DHJ, ‘Max Weber and the Concept of Legitimacy in Contemporary Jurisprudence’ (1983) 33 DePaul Law Review 1 Google Scholar.
67 Ibid 9.
68 Max Weber, Wirtschaft und Gesellschaft, herausg. von J. Winckelmann, I, Köln/Berlin 1964, 22 sqq., 157 sqq, cited by Petrović (n 11) 11.
69 Ihonvbere (n 6) 346.
70 The Constitution of the Federal Republic of Nigeria (Promulgation) Decree 24 1999 was promulgated on 5 May 1999 to take effect from 29 May 1999. General elections were held on 5 December 1998 (local elections), 9 January 1999 (state and gubernatorial elections, 20 February 1999 (National Assembly elections) and 27 February 1999 (presidential elections). See The Carter Center, Observing the 1998–99 Nigeria Elections Final Report (National Democratic Institute for International Affairs, Washington, DC, 1999) 10.
71 K Loewenstein, Verfassungslehre (Tübingen, 1959) 252 sqq, cited in Petrović (n 11) 9.
72 Ibid.
73 According to Loewenstein, the semantic constitutional form is typified by the Plebiscitary Caesarism of the two Napoleons in the past, and present-day Islamic regimes, totalitarian fascist or communist dictatorships and strong presidential regimes.
74 (2004) 11–12 S.C. 85.
75 See section 232(1).
76 ‘Nigeria’s President Sacks the Chief Justice Weeks Before an Election’, The Economist, 2 February 2019, available at <https://www.economist.com/middle-east-and-africa/2019/02/02/nigerias-president-sacks-the-chief-justice-weeks-before-an-election>. See also ‘Statement on the Suspension and Replacement of the Chief Justice’, available at <ng.usembassy.gov/statement-on-the-suspension-and-replacement-of-the-chief-justice>.
77 Section 292(1)(a).
78 Third Schedule, para 21(b), (g).
79 See Akan v Attorney General, Cross River State (1982) 3 NCLR 881; Akpan v Umah (2002) FWLR (Pt.110) 1820; (2002) 7 NWLR (Pt.767) 701; Attorney General, Plateau State v Guyol (2007) 16 NWLR (Pt. 1059) 57 at 95–96; Attorney General, Benue State v Umar (2008) 1 NWLR (Pt. 1068) 311 at 355; Adamawa State House Assembly v Tijjani (2012) All FWRL (Pt.615) 330 at 377. The court in Attorney General, Plateau State v Guyol, for instance, held that, ‘although it is within the legislative power of a State House of Assembly to make law to regulate a local government council in the State plagued with crisis, or to make a law to prescribe for an event upon which happening a Local Government Council is dissolved or the Chairman or Vice-Chairman of a Local Government Council is removed or vacates his office, any law made by the House of Assembly which provides for nomination of membership of a council or appointment of an administrator or caretaker Committee to replace a democratically elected council is inconsistent with the clear and unambiguous provisions of section 7(1) of the 1999 Constitution, which guarantees democratically elected local government councils and is therefore, unconstitutional. Thus, the action of the Government in dissolving the councils and proceeding to appoint caretaker committees rendered its action unconstitutional and the trial court was therefore right in striking down section 41(4) of the Local Government Law, 2007 on the ground that it is inconsistent with section 7 of the Constitution. In the instant case, even if the respondents consented to the dissolution of the councils which paved way for the enactment of the law giving the Governor power to appoint caretaker committees, it would still not alter the position because the parties had no power to contract out of the Constitution.’
80 (2015) LPELR-25968 (CA).
81 Dogari v Attorney-General of Taraba State (2011) All FWLR (Pt. 603) 1926.
82 Fallon Jr (n 38).
83 Ibid 1791.
84 Conducted under the legal regime of the Constitution of Kenya Review Act 2000 (as amended in 2001).
85 The CKRC was composed of 29 members. See C Murray, ‘Political Elites and the People – Kenya’s Decade-Long Constitution-Making Process’ in GL Negretto (ed), Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives (Cambridge University Press, Cambridge, 2020) 192.
86 The NCC was composed of 629 members in all. This is made up of ‘all members of Parliament, three delegates elected from each district, 42 representatives of political parties, and 125 representatives of religious, women’s and youth groups, the disabled, trade unions and NGOs’. See J Cottrell and Y Ghai, ‘Constitution Making and Democratization in Kenya (2000–2005)’ (2007) 14(1) Democratization 1, 6.
87 The NCC could adopt the provisions of the draft Constitution by two-thirds vote while the Kenyan NA could only adopt or reject the draft Constitution but could not modify it.
88 See Cottrell and Ghai (n 86) 12–21; C Murray, ‘Kenya’s 2010 Constitution’ (2013) 61 Jahrbuch des Öffentlichen Rechts der Gegenwart 747–88.
89 See, for example, 1963 Constitution of Kenya, art 47A which required a 65 per cent vote before a draft Constitution submitted by parliament could successfully be modified.
90 Murray (n 85) 201.
91 The CoE received and engaged with some 26,451 oral and written submissions within eight months of its establishment. See CoE, Final Report of the Committee of Experts on Constitutional Review (Westlands, Kenya: CoE, 2010) 41 available at <https://katibaculturalrights.wordpress.com/resources/drafting-the-constitution>.
92 Ibid 202.
93 As part of the measures to ensure the impartiality and independence of the court, three foreigners were included in its membership of nine judges. See 1963 Constitution of Kenya, Art 60A.
94 Murray (n 85) 201.
95 The CoE within this period ‘received 39,439 substantive memoranda’ containing 1,732,386 suggestions or recommendations. See CoE, ‘The Report of The Committee of Experts on Constitutional Review Issued on the Submission of the Reviewed Harmonized Draft Constitution to the Parliamentary Select Committee on Constitutional Review, 8 January, 2010’ available at <https://katibaculturalrights.wordpress.com/resources/drafting-the-constitution>.
96 Njoya v AG [2004] LLR 4788 (HCK).
97 See Kesavananda Bharati Sripadagalvaru v State of Kerala (1973) 4 SCC 225, where the Indian Supreme Court decided that parliament’s power to amend the constitution does not include the power to fundamentally alter the Constitution’s basic structure.
98 Part of the guarantees were the binding nature of the interim constitution, formation of a Government of National Unity (GNU) and its 34 constitutional principles by which the validity of the Final Constitution would be determined.
99 The current South African President.
100 Generally, see C Murray, ‘A Constitutional Beginning: Making South Africa’s Final Constitution’ (2001) 23 University of Arkansas at Little Rock Law Review 809.
101 This was one of the deadlocks breaking mechanisms of the interim constitution to resolve differences.
102 See In re Certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SALR 744 (CC).
103 Kay (n 61) 125.
104 Articles of Confederation, art. XIII (U.S. 1781) [‘Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which, by this confederation, are submitted to them. And the articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.’
105 Kay (n 61) 126.
106 Ibid.
107 Rawls (n 51) 239.
108 R Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, New York, 2019) 70. See also G Jacobsohn, ‘Anchoring and Sailing: Contrasting Imperatives of Constitutional Revolution’, in G Jacobsohn & M Schor (eds), Comparative Constitutional Theory (Edward Elgar, Cheltenham, 2018) 334: ‘A constitutional revolution occurs when there is a paradigmatic displacement in the conceptual prism through which constitutionalism is experienced in a given polity. Such a transformation will be accompanied by critical changes in constitutional identity, although not every mutation of identity will entail a shift of sufficient magnitude to be considered revolutionary.’
109 See, for example, KE Soltan ‘Constitution making at the edges of constitutional order’ (2008) 49 William and Mary Law Review 1409. Soltan outlays four hypotheses on constitution-making to justify his contention that constitutions are nothing more than commitments. His four ‘theses about constitution making in fragile states’ (p. 1416) are as follows: ‘First, constitutions are not supreme law. Or, to use a British phrase, the law of the constitution is not to be identified with the constitution. Second, constitutions are commitments to moderation, above all to diminish the use of the means of destruction, and to enhance impartial principles. Third, these commitments are likely to develop in stages, not in one constitution-making convention. Fourth, the result may not be a strengthened state, but rather a union of states akin to the contemporary European Union, or it may be a number of separate states. Constitution making is not necessarily state building.’
110 The first, officially tagged the National Political Reform Conference, was organised by President Obasanjo’s administration in 2005; the second, known simply as the 2014 National Conference, was organised by President Jonathan’s administration. The reports of both conferences are still gathering dust in the national archives. President Buhari has in fact reportedly vowed not to implement the report of the 2014 conference despite agitation by some that he should.
111 See ‘Full List of Constitution Amendments by Senate’, The Punch, 27 July 2017.
112 This figure is arrived at by using the Bill tracker tool on the website of the National Assembly. See <https://www.nassnig.org/documents/bills>.
113 Notable names are Professor Yemi Osinbajo (currently the Vice President), Asiwaju Ahmed Tinubu (a national leader of the All Progressives Congress), and Dr Kayode Fayemi (Governor of Ekiti state). See ‘Fayemi, Anyaoku, Osinbajo Canvasses Sovereign National Conference’, available at <https://ekitistate.gov.ng/fayemi-anyoku-osinbajo-cavasses-sovereign-national-conference>.
114 See A Momoh, ‘The Philosophy and Theory of the National Question’, in A Momoh and S Adejumobi (eds), The National Question in Nigeria: Comparative Perspectives (Routledge, London, 2002) 21; E Edosa, ‘National Integration, Citizenship, Political Participation and Democratic Stability in Nigeria’, in U Usuanlele and B Ibhawoh (eds), Minority Rights and the National Question in Nigeria (Palgrave Macmillan, London, 2017) 196–97.
116 That is a radical paradigm shift in the context of the Nigerian constitutional history.
117 Arendt, H, On Revolution (Viking Press, New York, 1963)Google Scholar.
118 See A Arato, ‘Forms of Constitution Making and Theories of Democracy’ (1995–96) 17 Cardozo Law Review 191, 194.
119 Elster, J, ‘Constitution-Making in Eastern Europe: Rebuilding the Boat in the Open Sea’ (1993)71 (1–2) Public Administration 169, 178–79CrossRefGoogle Scholar.
120 EJ Sieyès, What is the Third Estate?, trans M Blondel, SE Finer (ed) (Pall Mall Press, London, 1963) 121–22.
121 Schmitt, C, Constitutional Theory, trans Seitzer, Jeffrey (Duke University Press, Durham, NC, 2008) 94 CrossRefGoogle Scholar.
122 Albert (n 108) 72.
123 Y Roznai, ‘“We the People”, “Oui, the People” and the Collective Body: Perceptions of Constituent Power’ in Jacobsohn and Schor (n 108) 313.
124 Arato (n 118) 203. See also R Stacey, ‘Constituent Power and Carl Schmitt’s Theory of Constitution in Kenya’s Constitution-Making Process’ (2011) 9 (3–4) International Journal of Constitutional Law 587; M Loughlin, ‘The Concept of Constituent Power’ (2014) 13(2) European Journal of Political Theory 218; M Loughlin, ‘On Constituent Power’, in MW Dowdle and MA Wilkinson (eds), Constitutionalism Beyond Liberalism (Cambridge University Press, Cambridge, 2017) 151–75.
125 T Paine, Rights of Man: Being an Answer to Mr Burke’s Attack on the French Revolution (JS Jordan, London, 1791) 122.
126 M Duverger, ‘Legitimite des gouvernements de fait’ (1948) Revue du droit publique 78. See also J McClellan and ME Bradford (eds), Jonathon Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 (J. River, Cumberland VA, 1989) 432.
127 Arato (n 118) 202.
128 Ibid 203.
129 See A Arato, ‘The Link Between Revolution and Sovereign Dictatorship: Reflections on the Russian Constituent Assembly’ (2017) 24 Constellations 493, 496, where the author gives the essentials of this revolutionary constitution-making model as follows: 1. As in the doctrine of Sieyès and Schmitt, the constituent assembly is a complete and legitimate stand-in for the constituent power of the people or the nation in ‘the state of nature.’ 2. As such, the assembly is subject to no constitutional rules, and is legally unlimited. 3. As there are no prior procedural rules, a constituent assembly has only the unworkable choice of deciding unanimously and the almost inevitable option of making decisions through a simple majority. 4. Having electoral legitimacy, the assembly would supersede any previous provisional government produced by the means of an insurrection, and a new one would have to be, in effect, its own executive committee. He thereafter concluded that ‘a constituent assembly after the Bolshevik insurrection, under the prevailing theoretical assumptions as well as Russian conditions in 1917 and 1918,’ could not be said to result in ‘representative and direct democratic forms or any other form of constitutional government’.
130 See D Landau, ‘Constitution-Making Gone Wrong’ (2013) 64(5) Alabama Law Review 923, 927.
131 See Ackerman, B, We the People. Volume 1: Foundations (Harvard University Press, Cambridge, MA, 1991)Google Scholar.
132 Landau (n 130).
133 This undoubtedly requires the kind of sincere discussions, negotiations and compromises that characterised the South African and Kenyan constitution-making experiences.
134 Wandan, S, ‘Nothing Out of the Ordinary: Constitution Making as Representative Politics’ (2015) 22(1) Constellations 44 CrossRefGoogle Scholar.
135 Ibid 47.
136 Ibid.
137 C Hahm and SH. Kim, ‘To Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8 International Journal of Constitutional Law 800.
138 See P Russell, Constitutional Odyssey: Can Canadians become a Sovereign People? (1993) 106. See also J Widner, ‘Constitution Writing and Conflict Resolution’ (2005) 94 The Round Table 503–18, which asserts that about 200 constitutions came up between 1975 and 2003 in countries experiencing one form of conflict or the other as part of the peace process.
139 Wandan (n 134) 47. Other negating ideas in support are as contained in the concepts of ‘constitutional borrowing’ (L Epstein and J Knight, ‘Constitutional Borrowing and Non Borrowing’ (2003) 1 International Journal of Constitutional Law 196; N Tebbe and RL Tsai, ‘Constitutional Borrowing’ (2010) 108 Michigan Law Review 459; and M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, New York, 2012)); ‘diffusion of constitutional ideas’ (H Klug, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge University Press, Cambridge and New York, 2000); Z Elkins, ‘Constitutional Networks’, in M Kahler (ed), Networked Politics: Agency, Power and Governance (Cornell University Press, Ithaca, NY, 2009) 43–63); ‘migration of constitutional ideas’ (F Schauer, ‘On the Migration of Constitutional Ideas’ (2004) 37 Connecticut Law Review 907; S Choudhry, The Migration of Constitutional Ideas (Cambridge University Press, New York, 2006)); and total ‘constitutional imposition’ (N Feldman, ‘Imposed Constitutionalism’ (2004) 37 Connecticut Law Review 857; UK Preuß, ‘Perspectives on Post-Conflict Constitutionalism: Reflections on Regime Change Through External Constitutionalization’ (2006) 51 New York Law School Law Review 467; JA Their, ‘The Making of a Constitution in Afghanistan’ (2006) 51 New York Law School Law Review 557; Z Elkins et al, ‘Baghdad, Tokyo, Kabul: Constitution Making in Occupied States’ (2007) 49 William & Mary Law Review 1139; and A Arato, Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq (Columbia University Press, New York, 2009)).
140 Arato (n 118) 202.
141 Ibid.
142 See articles 2, 3, 5 and 23.
143 See Linn Hammergren, Political Will, Constituency Building, and Public Support in Rule of Law Programs (Center for Democracy and Governance Bureau for Global Programs, Field Support, and Research US Agency for International Development, Washington, DC, 1998). Available at <https://issat.dcaf.ch/Learn/Resource-Library/Policy-and-Research-Papers/Political-Will.-Constituency-Building.-And-Public-Support-in-Rule-of-Law-Programs>; LA Post, ANW Raile and ED Raile, ‘Defining Political Will’ (2010) 38(4) Politics and Policy 653; D Abazović and A Mujkić (eds), Political Will: A Short Introduction Case Study – Bosnia and Herzegovina (Friedrich-Ebert-Stiftung, Sarajevo, 2015).
144 ‘2023: Na’abba, Agbakoba, Utomi, Ezekwesili, Others Float New Political Movement’, The Punch, 1 July 2020. Available at <https://punchng.com/2023-naabba-falana-utomi-ezekwesili-others-float-new-political-movement>.
145 A Arato, ‘Redeeming the Still Redeemable: Post Sovereign Constitution Making’ (2009) 22 International Journal of Politics, Culture and Society 427, 429; A Arato, ‘Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-Making’ (2012) 1 Global Constitutionalism 173. See also A Arato, Post Sovereign Constitution Making: Learning and Legitimacy (Oxford University Press, Oxford, 2016).
146 Arato ‘Conventions, Constituent Assemblies, and Round Tables’ (n 145) 193.
147 That is, where none existed previously.
148 Arato, ‘Redeeming the Still Redeemable’ (n 144) 430–31.
149 Arato ‘Conventions, Constituent Assemblies, and Round Tables’ (n 145) 194.
150 Arato, ‘Redeeming the Still Redeemable: Post Sovereign Constitution Making’ (n 145) 431.
151 Ibid.
152 See Roznai (n 123) 295.
153 Arato (n 118) 224–30.
154 See Osipitan (n 12) 36.
155 Petrović (n 11) 20.
156 Ebeku (n 6) 231.
157 It is ironic because the main reason given against the convening of such a conference is that it might lead to the disintegration of the country. It does, however, hold to reason that except where such a conference is held to accommodate differences and remedy past injustices, current systemic conflicts in the polity threatening the country’s corporate existence might eventually culminate in its disintegration.
158 A recent example is the blatant breach of the constitutionally guaranteed right to freedom of expression, including the right to access and disseminate information by the decision of the Nigerian President to not only ban Twitter operations in Nigeria but to also prosecute any Nigerian who persists in using the medium. See CFRN, s 39; Anietie Ewang, ‘Nigeria’s Twitter Ban Follows Pattern of Repression – Government Should End Restrictions on Free Expression’, Human Rights Watch, 7 June 2021. Available at <https://www.hrw.org/news/2021/06/07/nigerias-twitter-ban-follows-pattern-repression>; Danielle Paquette, ‘Nigerians Could Get Arrested for Tweeting. They’re Protesting on Twitter Anyway’, Washington Post, 7 June 2021. Available at <https://www.washingtonpost.com/world/2021/06/07/nigeria-twitter-ban-buhari-lawsuit>.
159 IS Ogundiya, ‘The Cycle of Legitimacy Crisis in Nigeria: A Theoretical Exploration’ (2009) 20(2) Journal of Social Sciences 129, 137.
