📌 THE FACTS (What Actually Happened)
A Constitution Born of Military Decree
On May 29, 1999, Nigeria returned to civilian rule after nearly sixteen years of uninterrupted military dictatorship. But the document that ushered in this “new dawn” was not a people’s constitution. It was a military decree—a document drafted in haste by a committee led by Justice Niki Tobi, given barely one month to produce a foundational legal document for Africa’s most populous nation.
The preamble declares: “We the people of the Federal Republic of Nigeria… do hereby make and give to ourselves the following Constitution.”
This claim, as legal scholars and constitutional experts have repeatedly noted, is false. A representative constituent assembly never debated the 1999 Constitution. It was never put to a referendum. It was not made by the people.
Instead, it was cloned from the 1979 Constitution—itself a military-imposed document—and handed down by the departing Abdulsalami Abubakar regime. Senior Advocate of Nigeria Mohammed Ndarani Mohammed put it plainly: “The 1999 Constitution is a military document as opposed to a legislative document, which did not undergo the proper process of lawmaking.”
Chief Wole Olanipekun (SAN) went further, describing it as a “military albatross” that “tells lies against itself”.
Key Features of the 1999 Constitution
| Feature | What It Does |
| Strong Executive Presidency | The President holds enormous powers—over appointments, the budget, security, and judicial appointments. |
| Centralized Federalism | 68 items on the Exclusive Legislative List; only 12 on the Concurrent List. Strong centre, weak states. |
| Weak Judiciary | Judicial appointments require presidential approval; judiciary financially dependent on the executive. |
| Immunity Clause (Section 308) | Protects sitting governors and the President from prosecution, shielding corruption. |
| Land Use Act (entrenched) | States cannot manage their own natural resources without federal approval. |
| Non-Justiciable Chapter II | Fundamental Objectives of State Policy are not enforceable in court. |
The Defects: A Constitution Against the People
1. A Flawed Foundation
You cannot build a stable nation on a fraudulent foundation. Legal icon Afe Babalola (SAN) argued that the 1999 Constitution cannot be cured through amendment because “you cannot cure fraud”. He used the analogy: “You cannot amend a coconut tree which has no branches to become an Iroko tree which has branches.”
2. Unitary Federalism
Nigeria is meant to be a federation. But the 1999 Constitution centralizes power in Abuja in ways that strip states of their autonomy. Former NBA President Wole Olanipekun lamented the entrenchment of the Land Use Act and the arbitrary creation of local governments, arguing that the constitution “emasculates the states and perpetuates inequality”.
Compare:
| Constitution | Exclusive List Items | Concurrent List Items |
|---|---|---|
| 1963 Constitution | 45 | 29 |
| 1979 Constitution | 67 | 12 |
| 1999 Constitution | 68 | 12 |
The drift from weak centre/strong regions to strong centre/weak states is stark.
3. The Indigenous Peoples of the FCT
The 1999 Constitution failed to recognise the original inhabitants of the Federal Capital Territory—over six million people before the FCT was established. Sections 302, 147, and 299 effectively exclude them from statehood and full representation.
4. The Immunity Clause
Section 308 protects sitting governors and the President from prosecution. This provision has been widely condemned for fostering corruption and undermining the rule of law. “This provision shields public officials from accountability,” Mohammed Ndarani Mohammed argued, “showing the importance of its removal to promote transparency”.
5. Judicial Dependence
The judiciary’s financial management is controlled by the executive. Judges’ salaries and budgets are determined by the executive branch, creating conflicts of interest that can lead to “judicial bias and reluctance to rule against the executive”.
Constitution Exclusive List Items Concurrent List Items1963 Constitution 45 291979 Constitution 67 121999 Constitution 68 12The drift from weak centre/strong regions to strong centre/weak states is stark.
- The Indigenous Peoples of the FCT: The 1999 Constitution failed to recognise the original inhabitants of the Federal Capital Territory—over six million people before the FCT was established. Sections 302, 147, and 299 effectively exclude them from statehood and full representation.
- The Immunity Clause, Section 308, protects sitting governors and the President from prosecution. This provision has been widely condemned for fostering corruption and undermining the rule of law. “This provision shields public officials from accountability,” Mohammed Ndarani Mohammed argued, “showing the importance of its removal to promote transparency”.
- Judicial Dependence: The judiciary’s financial management is controlled by the executive. Judges’ salaries and budgets are determined by the executive branch, creating conflicts of interest that can lead to “judicial bias and reluctance to rule against the executive”.
A Quarter-Century of “What Could Have Been”
On May 29, 2024, Nigeria marked 25 years of uninterrupted democracy—the longest stretch since independence. A Daily Trust editorial captured the moment in its title: “25 Years of What Could Have Been.”
The Achievements:
- Nigeria has remained one nation despite centrifugal forces.
- Constitutional amendments have added more items to the Concurrent List, making Nigeria more federal.
- Electoral integrity has improved, culminating in the first peaceful transition between two different parties in 2015.
- The economy is now Africa’s largest, with GDP above $400 billion.
- The middle class has grown to about 23% of the population.
- Universities have expanded from fewer than 40 to more than 170. The Failures:
- 63% of Nigerians (over 133 million) are “multi-dimensionally poor”.
- Political parties lack internal democracy; they are “one-man shows” controlled by the highest bidder.
- Politics has no sense of higher purpose—it is driven by self-aggrandisement and enrichment.
- Security has collapsed; Nigeria is “almost ungovernable, but effectively ungoverned, except when clamping down on citizens”
🔁 WHAT COULD HAVE BEEN (If the Abacha Draft Had Survived)
The Road Not Taken: The 1995 Draft Constitution
There is a forgotten chapter in Nigeria’s constitutional history. In 1994–1995, General Sani Abacha convened a National Constitutional Conference that produced a draft constitution with provisions that would have fundamentally restructured Nigeria.
When Abacha died in 1998, his successor, General Abdulsalami Abubakar, threw out the Abacha draft—not because it was flawed, but because it carried the Abacha name. The Niki Tobi Committee was tasked with finding a “clean” alternative. It chose to clone the 1979 Constitution.
What the Abacha Draft Contained:
| Provision | What It Would Have Done |
|---|---|
| Six Geo-Political Zones | Officially codified the zones as building blocks for governance. |
| Six Principal Offices | President, Vice President, Senate President, Speaker, Prime Minister, Deputy Prime Minister—rotating among the zones every five years. |
| Single Five-Year Terms | No re-election. No incumbency factor. No abuse of state machinery for re-election. |
| Part-Time Lawmaking | Reduced cost of governance; lawmakers would not be career politicians. |
| No Immunity Clause | No protection for corrupt public officials. The draft had no immunity clause for any office holder |
The Counterfactual Question:
What if the Abacha draft had survived?
- By 2023, each of the six zones would have produced a President or other principal officer.
- No one zone would have dominated the political space.
- The incumbency factor—and its attendant abuses—would have been eliminated.
- Treasury looters would not have been shielded from prosecution.
As one analyst argued: “There would not have been Boko Haram, IPOB and, most certainly, no Niger Delta insurgency if the nation was regulated by the provisions of the document.”
The Alternative Vision: A Return to 1963
Many legal scholars and political leaders have argued that the solution is not to amend the 1999 Constitution, but to replace it entirely with a new people-made document—or return to the 1963 Constitution.
Afe Babalola (SAN) called for:
- A national constitutional conference.
- A parliamentary system of government (like 1963).
- A true federal constitution made with the consent of the people.
Chief Wole Olanipekun (SAN) proposed a transitional period between now and 2031:
- Elections would still hold.
- Winners would serve their terms.
- But by May 29, 2031, Nigeria would operate under a new Constitution, a new structure, and a fresh dawn.
The 1963 Constitution is often cited as a benchmark because it:
- Had a weak centre and strong regions.
- Featured 45 items on the Exclusive List and 29 on the Concurrent List.
- Allowed regions to generate their own revenue and retain 50%.
- Had a parliamentary system with genuine checks and balances
📌 THE LESSON FOR TODAY
Why the 1999 Constitution Still Haunts Us
The 1999 Constitution is not just a document. It is a system of power—one that centralizes authority in Abuja, protects the powerful, and excludes the people.
Three Hard Truths:
1. You cannot amend a fraudulent document into legitimacy.
As Afe Babalola and Wole Olanipekun have both argued, the 1999 Constitution was never made by the people. Tinkering around the edges through endless amendments does not solve the fundamental problem: it was a military imposition.
2. “No Victor, No Vanquished” was never applied to governance. The rhetoric of reconciliation after the civil war—”No Victor, No Vanquished”—never translated into a genuinely inclusive constitutional order. Instead, the military entrenched a system that favoured the centre over the regions, the executive over the legislature, and the powerful over the people.
3. The call for restructuring will not go away.
Agitations for restructuring—from IPOB in the East to Yoruba Nation activists in the West to Middle Belt groups—are not going to disappear. As one scholar put it: “The rhetoric of restructuring continues to highlight flaws and irregularities in Nigerian federalism, to dominate constitutional discourse, and to impact political developments.”
The Path Forward
What Would a Genuine Reparative Constitution Look Like?
| Issue | What Reform Would Look Like |
|---|---|
| Legitimacy | A new constitution drafted by a representative Constituent Assembly and approved by referendum. |
| Federalism | Decentralised power: states control resources, police, and key governance functions. |
| Judiciary | Financial independence from the executive; judicial appointments free of executive control. |
| Immunity | Removal of Section 308; all public officials accountable to the law. |
| Local Government | Genuine autonomy; not appendages of state governors. |
| Fiscal Federalism | States control and manage their natural resources; derivation principle restored. |
| Justiciable Rights | Chapter II becomes enforceable; citizens can hold government accountable. |
| Referendum | Citizens vote directly on fundamental constitutional questions. |
The Speculative Repair Question
What if the 1999 Constitution had been made by the people?
What if, in 1999, instead of a military-imposed document, Nigeria had:
- Convened a proper Constituent Assembly.
- Drafted a constitution through debate and deliberation.
- Subjected it to a national referendum.
- Built a genuinely federal system with strong states and a limited centre.
What would Nigeria look like today?
- States would control their resources—and their own security.
- The presidency would not be an all-powerful throne.
- Citizens could sue the government for failing to provide basic services.
- The immunity clause would not shield corrupt governors.
- The cries for restructuring would be muted—because the structure would already work.
The counterfactual is not fantasy. It is the blueprint for a country that could still be.
💬 DISCUSSION QUESTIONS
1. Is the 1999 Constitution fundamentally flawed, or can it be saved through amendments?
2. Should Nigeria adopt a new constitution through a national referendum—or return to the 1963 Constitution?
3. What would Nigeria look like today if the Abacha draft constitution of 1995 had been adopted?
4. Is the call for “restructuring” a genuine demand for justice—or a cover for elite power struggles?
5. Why have amendments to the 1999 Constitution failed to address the country’s core problems?
6. What would a “people-made” constitution look like? Who should be involved in its creation?
7. What role can imagination—speculative repair—play in rethinking Nigeria’s constitutional future?
NEXT WEEK: NIGERIA’S FUTURE – A VISION FOR THE NEXT GENERATION.
We have traced the arc of Nigeria’s political journey—from the optimism of independence, through the tragedy of war, the promise of the 1979 Constitution, the betrayal of SAP, the darkness of the Abacha years, and the flawed foundation of the 1999 Constitution.
Now we ask: What next?
What kind of Nigeria do we want to build for the generation coming after us? Join us next week for the final reflection.
Share Your Thoughts: I would love to hear your reflections on the 1999 Constitution and the path forward for Nigeria.
Reply here or message me privately.
With you,
Ibekwe Paul Chukwuemeka
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