CHAPTER ONE GENERAL INTRODUCTION

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]

Nigeria is the most populous Black Country in the world. This has earned Nigeria a pre-eminent place in the comity of States. Nigeria is the acclaimed giant of Africa. Unfortunately, Nigeria has a very checkered constitutional evolution. A number of constitutions have been enacted for Nigeria and yet Nigeria cannot even presently boast of a holistic constitution that is made by specifically elected and mandated people of Nigeria. What is worse, Nigeria has a constitution without constitutionalism. Nigerian leaders inherited the culture of political impunity and lawlessness from the military era.  This has now posed a serious challenge to democratic governance in Nigeria.

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. 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.