NATIONAL OPEN UNIVERSITY OF NIGERIA

LL.M SEMINAR PAPER PRESENTED TO THE FACULTY OF LAW

TOPIC

ASSUME THE ROLE OF A CHAIRMAN OF A CONSTITUTION DRAFTING

COMMITTEE, DESCRIBE A CONSTITUTION FOR A NEW NATION USING
STATUTE AND CASE LAW

BY

BAKWO ADEMU (NOU 232137082)

OSENI RASAQ (NOU232136878)
OLIVER BIDAH NAPTOYA (NOU232070082)
UZOR CHRISTIAN UZOR (NOU232136993)
JAMES CHRISTOPHER TOPE (NOU 232064859)
OSAROLLOR EMMANUEL (NOU232134837)

Date of Presentation:

Tuesday, April 18, 2023

LECTURER:
PROF JUSTUS SOKEFUN

DEGREE IN VIEW:
MASTER OF LAWS (LLM)

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1.0 Introduction:
The chairman of the constitution drafting committee is the head of the assemblage of
professionals appointed or elected to produce a constitution to knead the various groups within a
geographical location as one united entity called a state.
From Britain to France, United States of America, South Africa, India and Nigeria,
Constitutional Conference have played significant roles in the evolution of constitutions.
Consequently, this Research work, in employing doctrinal approach will review related
literatures, statute and case laws as it concerns this topic. The paper, -Assuming the Role of a
Chairman of a Constitutional Committee and to describe a Constitution for a New Nation using
Case Statute and Case Law” will make forays into the origin of constitutional drafting, function
of the chairman of the committee, origin or, historical evolution of constitution, basic
constitutional concepts, the nature of constitution, importance of constitution, the need for a
constitution, qualities of a good and enduring constitution for a new nation in an effort to
guarantee a progressive, secured society.
However, in most of the areas where constitutional conference where held, the constitution
prescribed were written constitution. In this regard this work will be limited to the written
constitutions. In a nut shell what this paper is set out to achieve is that from the description of
the constitution for a new nation stating the types and their advantages, the new nation would be
able to make a choice of the kind of constitution they will make for the progress, peace and unity
of their country.
2. Constitutional Drafting Committee or constituent Assembly
The phrase “constitutional drafting Committee would be used interchangeably with the phrase
“Constituent Assembly” as the name of the committee to draft the constitution vary from nation
to nation. According to Yash Ghai in work title “The Role of Constituent Assemblies in
Constitution Making”1 constituent assembly is established because there may be no legitimate
institutions to undertake the task of constitution making. Sometimes there may be no institutions
at all, like Cambodia, where the state had collapsed. In Somalia or East Timor there were a
breakaway state and had no institutions of its own anymore. There may be no institutions for the
1
IDEA (Institute for Democracy and Electoral Assistance), University of Hong Kong for the Distinguished
Researcher Award, comparative constitutions.

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purpose of making a constitution. Prof. Ben O. Nwabueze, SAN defined a constituent assembly
thus:
“It is an assemblage specifically elected and specifically mandated by the people to adopt a
constitution and institute a frame of government on their behalf…. Only the people, by means of
popular and free election, can confer constituent power because it is only to them that the
exercise of power belongs”2

Also there might be need for drafting a constitution when two or more independent states form a
union or federation. At that stage there is no common institution with authority to adopt a
constitution for the new federation to be formed. The constituent assembly is often used in
revolutionary contexts where the old regime and institutions are deliberately destroyed to make
room for a new system (France as in Russia) 3. Sometimes the search is for legal ‘revolutionary’
break from the old regime, often during de-colonization, to ‘disconnect’ independence, rooted in
local struggles, from the institutions or decisions of the imperialists.
Indians had argued for a constituent assembly because that implied that negotiations would be
among Indians themselves. The constituent assembly envisaged by Congress would also have
meant a major advance towards democratization, because the delegates would have been elected
by universal franchise. This was the crux of Indian Constitutional conference.
Some people advocate a constituent assembly because they imagine it not only as a
representative and inclusive body but also one in which people can participate in other ways. It is
seen - much more than parliament - as a gathering of the nation. They consider that an inclusive
constituent assembly is more consistent with people’s sovereignty than a parliament (where
sectional interests may dominate). People, marginalized by the political system often agitate for a
constituent assembly (in the Philippines, Kenya, Zambia, Bolivia, Ecuador, there have been
frequent demands by the people for a constituent assembly). Unfortunately, not all constituent
assembly driven processes are inclusive or participatory (e.g., Cambodia, where all the
proceedings of the Constituent Assembly were held in secrecy, and East Timor where the
majority party pushed its own draft and was not very receptive to civil society organizations.
Although an old device, the rationale for a constituent assembly today is quite different from
before: now the constituent assembly is seen as embodying people’s sovereignty, as reflecting
diversity, and being linked to the broad social charter character. . It is used to develop a
2
Ben Nwabueze, Ideas and Facts in Constitution Making, Spectrum Books Ltd, Lagos 1993 p.1
3
Patrick Fafard and Darrel R. Reid, Constituent Assemblies: A
Comparative Survey (Institute of Intergovernmental Relations, Queen’s University, Ontario: 1991).

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consensus in deeply divided societies, and to define the country’s identity. This emphasy reflects
the nature of many contemporary constitutions—as negotiated documents, a way out of political
or ethnic stalemate, an exercise in building and consolidating peace, solving
internal conflicts, managing diversity and aiming at inclusiveness. The structure, powers and
procedures of the constituent assembly must reflect these changed realities. Indeed constituent
assembly would bring about independence without communal strife, and recognized that the
assembly would have to provide for the rights of minorities.
If the constitution is made in settled times, there are many options, including a high degree of
participation by the public as was the case in the 1997 process in Thailand.
The United States of America (1776), France (1789), Nigeria (1922 to 1960) and South Africa
have utilized the activities of the constitutional drafting committees to establish formidable
constitution. Though the national assembly of France acted as its constituent assembly, it drafted
a constitution for the new regime. This constitution was the first to establish a limited monarchy
with clear separation of powers.

3. Constitution Making/Drafting
This is the process to bring a constitution into being. The process is not abrupt but gradual.
Constitution making by enactment, the representatives of the people of the constituent parts of
the country, often come together in a constituent assembly or, constitutional conference or under
other designated name made up of:
(a) Elected representatives of the people to represent the interest of each of the constituencies
or constituent units of the country; and
(b) Persons nominated by the government, to primarily represent the interest of the
government in the making of the constitution.
These people work with various documents and precedents and then debate, vote and or fashion
out a constitution which is written down and submitted to the government of the day to pass it
into law as a constitution for the country, with or without amendment as mays be necessary.
The 1979 and 1989 constitutions and the 1995 draft constitution of Nigeria were all made by this
method. Alternatively, the people may in a referendum approve the constitution for themselves.
The Nigeria Constitution in 1999 was a product of the military government which established a

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constitutional drafting committee during General Obasanjo’s administration that terminated in
1979 when a civilian government was elected.
On the question of who has the right to make or approve a constitution for a country, Chief Bola
Ige, SAN (late) a former Governor of Oyo State and former Attorney General and Minister of
Justice of Nigeria said:

“since the existence of government and power of a government derives from constitution, the
government cannot logically, and should not make it. Logically, government cannot create itself.
Or considering our experience with colonial and military rule, it is better to say it, it should not…
A constitution must proceed from the exercise of sovereignty by the people. The reason is that
political theory has long accepted and affirmed the axiom that sovereignty, or if you like, power
belongs to the people;. However, it was the American Revolution of 1776-1787 which brought
to the forefront, more than at any time hitherto, that the people were the repository of
sovereignty, which includes constituent power, and the people are the only entity, which can
exercise constituent power. From 1787, the three opening words of the Constitution of the
United States of America, WE THE PEOPLE have appeared in mostly written constitutions,
including those enacted by our own military governments.4
The proper procedure is for a constituent assembly made up of mostly elected and fewer
nominated representatives of the people to write the constitution and for the people to adopt it for
use on an agreed date, by one of two ways, either directly through a general referendum, or
indirectly by mandating the constituent assembly to adopt it on behalf of the people. This goes
to show how important the work of a constitutional drafting committee can be.

4. What is the function of the chairman of a Constitutional Drafting committee

In an effort to originate a constitution for a new nation the Chairman of the committee must keep
to the terms of reference in order to achieve his aim. His responsibility is complex just as he
presides over a delicate group first coming together to form a new nation. In this regard diverse
group would want to take advantage of the convergence and take the lion share of what they may
term the national cake. In this regard the chairman must know his scope which are not limited to
the following functions.

4
Bola Ige; Constitutions and the problem of Nigeria, Nigeria Institute of Advanced Legal Studies, Lagos, 1995. P7

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 a) Receive memorandum and present them for study by the members of the
Conference
b) Coordinate the activities of the Committee as appointed.
c) Agreeing on a broad set of principles and goals
d) Agreeing on institutions and procedures for making the constitution
e) Preparing people for consultation by providing civic education on the
process, country’s constitutional history, and constitutional options
f) Consulting people (including, where relevant, diaspora)
g) Consulting experts
h) Informing the process of comparative experiences
i) Analysis of opinions.
j) Preparing a draft constitution.
k) Public discussions of the draft constitution.
l) Preparing the final version
m) Enactment into law of the final version or present them to the appointing authority
like the one set up by former Head of State, General Olusegun Obasanjo.
n) The referendum (or any other mechanism of ratification).

5. Meaning of Constitution:
Where a chairman of the Constitutional Drafting Committee is expected to describe a
constitution there is the need to inculcate in the schedule the definition of the word or term.
Constitution is defined as the fundamental organic law of a nation or state that establishes the
institutions and apparatus of government, defines the scope of governmental sovereign powers,
and guarantees individual civil rights and civil rights.
For Shokenfu, Constitution is essentially the embodiment of the fundamental rules, principles
and institutions which constitute the political affairs of the state5.
It is essentially the embodiment of the fundamental rules, principles and institutions which
constitute the political affairs of the state. It is the ultimate source of all laws and foundation
upon which the whole body of governmental apparatus or system derives its validity, its origin
and strength. Consequently, any law that is inconsistent with the provisions of the constitution,
the provisions of the constitution shall prevail and other inconsistent laws shall be null and void.6
It has been aptly put by Hon. Justice Adolphus G. Karibi Whyte as the–fons et origo of the
exercise of powers; the enjoyment of rights, discharge of obligations.
Writing about the constitution, John Salmond has this to say: “The organization of a modern
state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts.
5
Prof. Shokenfu; Comparative Constitutional Law (NOUN) 2023 .
6
(See s1(1)(3)), Nigerian Constitution, 1999).

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The first consists of its fundamental or essential elements; the second consists of its secondary
elements; the details of states structure and state-action. This first, essential, and basal portion is
known as the constitution of the state.”7
According to Salmond, the more important, fundamental, and far-reaching any principle or
practice is, the more likely it is to be classed as constitutional8.
By nature, a constitution is a social contract between the government and the citizens and its
terms are guaranteed or sustained by those that control the machinery of government. It is an
expression of the will of the people that forms the state.
In Nigeria Development Co LTD v Adamawa State Water Board & 3 Ors 9, the Supreme Court of
Nigeria, held, inter alia that the issue of the constitutionality of a statute or law is not a small
matter but big and fundamental matter in any legal system. It has to do with the abrogation or
nullification of a statute in the event of breach. Accordingly, before a statute or law is
pronounced unconstitutional by a Court of Law, there must be a clear contravention or violation
of the Constitution. In Eze & 147 Ors v Governor, Abia State & 2 Ors 10, the Court of Appeal of
Nigeria emphasized on the supremacy and binding force of the Constitution of the Federal
Republic of Nigeria,1999. The Court held that the Constitution of the Federal Republic of
Nigeria is supreme and has a binding force. It is the basic law of Nigeria and its provisions make
it supreme, so that failure to follow its provisions render whatever is done to it unconstitutional.
The provisions of the constitution are superior to every provision made in any Act or Law, and
are binding on and must be respected by all persons and authorities in Nigeria.
To many states, the constitution is a symbol of nationhood. In newly emergent nations, however,
(particularly those finding themselves free from colonial rule), the constitution is used to
articulate a new emerging order.'
6. Origin of Constitution:
According to Malemi11 the idea of constitution was first emphasized by Aristotle in his
classification of governments as monarchs, tyrannies, aristocracies, oligarchies, democracies etc.
He said further that the best constitution is the one that combined element of monarchy,
aristocracy and democracy and will enable the citizens to enjoy their respective privileges and
7
John Salmond: Jurisprudence (p.200)
8
John Salmond: Jurisprudence,
9
(2008) 9 NWLR 498
10
(2010)15 NWLR 324
11
Ese (p.9),

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encourage them to discharge their responsibilities in the interest of the nation. Thomas Hobbes
an English philosopher and scientist who lived between 1588-1679, John Locke (1712-1778) and
French Philosopher Jean-Jaques Rousseau (1712-1778) through their various intellectual works
described the constitution as a social contract by which the people agree to give up certain
portion of their absolute freedom as observed in the state of nature in return for the security of
their lives and property by the government.
Locke’s influence through doctrine of separation of powers among the three arms of government,
the division of rights between the government and the individual influenced the 18 th Century
authors of the American Declaration of Independence, the American Constitution as well as the
Declaration of Rights of man and the citizen by French.
Examples of modern constitutions are the constitution of the United Kingdom, Canada, India,
South Africa and the Nigeria Constitution, 1999 as amended.
The idea of constitution and constitutional government is widespread all over the world today.
Discussing further about origin, modern constitutions are thus attributed to a desire by the people
to make a fresh start. This requires an outline of the new form of government.' A constitution is
especially important to a nation state in its infant stages. In this context, constitutions provide the
rational legal basis for the present order. The origins of modern constitutions are thus attributed
to a desire by the people to make a fresh start.

7. Constitutional Concepts:
It is hardly possible to describe a constitution without discussing few concepts of the
constitution. The concepts are the principles on which the entire gamut of the constitution is
based. What does the constitution have in mind, the ideology or the spirit of the constitution.
This is why majority of contemporary constitutions describe the basic principles, the structures
and processes of government as well as fundamental rights of the citizens in higher law which
cannot be unilaterally changed by an ordinary legislative act. One must take into consideration
the constitutional concept before coming up with any particular frame work of document. The
constitutional concepts are those ideas which influence the nature or form of constitution. A
basic idea, which seems to encompass these concepts and has permeated constitutional making in
modern world is that of ‘constitutionalism’ or ‘limited government’- that is the idea of including
in the Constitution certain rules and regulations geared towards preventing abuse or the exercise

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of arbitrary power by Government. This idea was first given birth to during the developmental
years of natural law, sovereign powers by divine laws. Noteworthy among these was John
Locke's theory of ‘Social Contract', which he believed predated societies and made government
mere trustees of the common interest of the community. His constitutional vision included the
establishment of a democratic state that guaranteed rights and freedoms on the one hand, and
promoted affirmative action on the other.
Producing a constitution requires the Drafting Committee to begin looking at various
constitutional models.. The concept of a constitutional monarchy is different from the
constitution under the democratic or constitutional democracy, a welfarist nation like France has
the spirit of such nature of document. According to Salmond the law will develop for itself a
theory of the constitution, as it develops a theory of most other things which may come in
question the administration of justice.12
It is imperative to note that a constitutional democracy tilts towards the social contract ideology,
etc. The constitution of the United states established the foundation upon which the American
government is built. Such basic principles are inculcated in the constitution as fundamental. So
new state is expected to know the essence in order to make up its mind on the type of
constitution it can embrace for the progress of its society. The concepts are the principles of
popular sovereignty, limited government, separation of powers, checks and balances, judicial
review and federalism as discussed below:

(a) Principle of Popular Sovereignty:

The principles of popular sovereignty establishes that all power rests with the people, and that
the people have given the government its power through the constitution. The government can
only function with the consent of the people. The sovereignty provision is also an expression of
independence of the new nation as well as residue of power. In Nigeria it is established that
Sovereignty belongs to the people as contained in the fundamental objective and principles of
state policy13. The power of the people are conveyed through their franchise.
(b) Limited government:

12
Salmond p.202
13
S.14 CFRN, 1999 (as amended)

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The principle of limited government states that the government can only do those things that the
people have given it authority to do. In another way, it must obey the law. This is the principle
of the rule of law.
(c) The concept of separation of powers:
This was incorporated into the US constitution before the US constitution was written. 14 The
national charter is largely based on the framework established by the state charters. The
constitution divides the powers of the national government among the congress (legislative
branch, the president (executive branch) and the courts (Judicial Branch). The three branches are
connected by a system of Checks and Balances, which allows one branch to retrain the power of
another.
The functions of the government were analysed firstly by Aristotle who was a Greek
Philosopher; and in the 17th Century the doctrine of separation of powers was developed by John
Locke, who saw in it a way of freeing mankind from the injustice and oppression which resulted
from an absolute system of government. Locke therefore concluded that the powers of the
government should be shared between three independent bodies called the Legislature, the
Executive and the Judiciary.
It was however Montesquieu the pre-revolutionary philosopher who contributed immensely to
the development of this doctrine and he did a lot to refine it so as to ensure justice and fairness in
the running of the government. In his Book, titled l’Esprit des Lois Chapter IX he said:
“Political liberty is to be found only when there is no
abuse of powers, but constant experience shows us that every man invested with powers, is liable
to abuse it and to carry his authority as far as it will go……To prevent this abuse, it is necessary
from the nature of things that one power should be a check on another…. when the legislative
and executive powers are united in the same person or body – there can be no liberty – Again,
there is no liberty if the judicial power is not separated from the legislature and executive –
There would be an end to every thing if the same person or body, whether of the nobles or of the
people, were to exercise all these powers.”

The meaning of the words “separation of powers” means three different things:
(a) That the same person should not form part of more than one of the three organs of
government, e.g. that ministers should not sit in parliament;
(b) That one organ of government should not control or interfere with the exercise of its
functions by another organ, e.g. that the judiciary should be responsible to parliament; and

14
www.hippocampus.org (assessed on …………. April, 2023.

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(c) That one organ of government should not exercise the function of another e.g. that the
ministers should not have legislative powers.
An example of the danger of putting the whole powers in one person’s hand was given in the
case in Lakanmi Vs. Attorney-General Western State where the supreme court ruled “that
Decree No. 45 of 1968 was ultra vires since it was nothing short of a legislative judgment, an
exercise of judicial power”.
The Court held that the doctrine of separation of powers exists in Nigeria and it cannot be thus
whittled down. The Supreme Court held thus:
“ In the absence of anything to the contrary it has to be admitted that the structure of our
Constitution is based on the separation of powers – the Legislature, the Executive and the
Judiciary. Our Constitution clearly follows the model of the American Constitution”.
Also see the case of Attorney-General for Australia V. Queen. In Lovel Vs. United States Mr.
Justice Black said as follows:
“Those who wrote our Constitution well knew the danger inherent in special legislative acts
which takeaway the life, liberty or property of particular named persons, because the legislature
thinks them guilty of conduct which deserves punishment. They intended to safeguard the people
of this country from punishment without trial by duly constituted courts”.

His lordship stated further; it is to define the powers of the legislature that constitutions are
written and the purpose is that such powers that are left with the legislature be limited; and that
the remainder be vested in the courts, Generally legislative usurpation of judicial powers has
been declared to be ultra vires as it was decided in the case of Liyanage Vs. The Queen when
Lord Pearce said:

(d) Judicial review: It is one elements of the system of check and balances so significant that it
is considered a basic principles of the constitutional system in its own right. When a court
declares an action unconstitutional, it becomes illegal the moment the ruling is issued. See
Marbury v Madison in 190315.
(e) The principle of federalism is a division of power between the national government and the
state or regional government. Because the framers of the constitution feared tyranny from
absolute central government but were also concerned about the ineffectiveness of a weak
confederation of independent states, they settled on the compromise of federalism. The goal was
15
Citation

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to develop a central government that was strong enough to meet the needs of the nation, while
preserving the authority of the state.

(f) Parliamentary Sovereignty and Constitutional Supremacy16

This expression “Parliamentary Sovereignty” is otherwise called “legislative supremacy” and it

implies the fact that parliament has absolute authority to issue orders and enact laws that are
binding on every person within the area of its jurisdiction. These laws or orders when made are
obligatory on the citizens and cannot be challenged or abrogated by any arm of the government.
Parliamentary sovereignty is a borrowed relic of the English system of government which
became operative as a result of the conflict between the crown and the parliament in England.
Supremacy of parliament is therefore recognized in any country that is having no written
constitution. It therefore means that any elected body of men called the parliament can pass any
law on any topic which affects the interest of persons. Indeed the word “Parliament” has many
names in many countries. In Britain for example, parliament includes both House of Commons,
the House of Lords and the Queen. In the United States of America, parliament is the Congress;
in France for example, parliament is called “the National Assembly” and in Nigeria, Parliament
is made up of the House of Representatives, the Senate.

However certain limitations are placed on the law making power of parliament in England. One
is that no parliament can make any law which would bind its successors.” This was decided in
the case of Ellen Street Estate Vs. The Minister of Health which is in line with the decision
reached in Vauzhall Estate V. Liverpool Corporation. 17

The position in Nigeria is that Parliamentary sovereignty does not exist in Nigeria and in its
place what we have supremacy of the constitution and sovereignty of the people. This is so
because Nigeria has a written constitution and as such superiority is given to the constitution
other than the parliament. The same position obtains in Canada, United States of America,
Zambia, Australia and other countries that have rigid or written constitution.

16
LAW 244 CONSTITUTIONAL LAW II (NOUN)

17
Citation needed

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This Constitution is supreme and its provisions shall have binding force on all authorities and
persons throughout the Federal Republic of Nigeria18

Section (2)
The Federal Republic shall not be governed, nor shall any person or group of persons take
control of the Government of Nigeria or any part thereof, except in accordance with the
provisions of this Constitution.

Section (3)
If any other law is inconsistent with the provisions of this Constitution, this constitution shall
prevail, and that other laws shall to the extent of the inconsistency be void.

Thus the supremacy of the constitution has protected the authority of an independent judicial
body as it was decided in the case of Doherty V. Balewa where the plaintiffs successfully
challenged the Commission and Tribunals of Inquiry Act 1961 No. 26 as being unconstitutional
due to some sections contained thereof. The supremacy of the constitution therefore means that
the constitution binds all persons within the state, that it overrides all laws in the state and that all
laws and all acts of all the arms of the government do derive their validity from the constitution.

(g) Ministerial Responsibility or Accountability of the Government to the Citizen

This is equally of a fundamental concept. Ministerial responsibility means that all the ministers
are collectively responsible to the elected parliament for the general policy of the administration.
This responsibility is based on the principle of accountability. Aihe and Oluyede quoted
Chamberlain as describing collective responsibility as:

absolute frankness in our private relations and full discussions of all matters of common interest
…..the decision freely arrived at should be loyally supported and considered as the decisions of
the whole government. Of course there may be occasions in which the difference is of so vital a
character that it is impossible for the minority …..to continue their support and in this case the
ministry breaks up orminority number or numbers resign.

Under a constitutional democracy, the President who happens to be head of the government take
responsibility for the failure of the government of the entire cabinet.

18
. LAW 244 CONSTITUTIONAL LAW II
15

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8. Nature of the Constitution
A constitution (Malemi) whether written or not, rigid, flexible, unitary or federal and so forth has
two basic natures, they are:
(i) It is the expression of the will or desire of the people who make up the state or
country,; and
(ii) It is a social contract between the government as an entity and the people on the one
hand. It is a contract between those who hold public offices and the people and on
the second hand and it is also a social contract between and among the various ethnic
people who make up the state.
9. Reasons for having a constitution (10)
According to Malemi the need for having the constitution are as follows:
1. To have a well-defined basis for coming together as a people from heterogeneous society
to form one state or nation.
2. The existence of a constitution is a mark of sovereignty
3. To have a code of governance
4. To prescribe method for establishment of government in order to ward-off military
incursion.
5. To establish fundamental principles and concept in order to guide those that control the
machinery of government.
6. To declare the objective of governance as the fulcrum to guide those that form a
government. Eg. Fundamental object and directive principles of state policy.
7. To set out the structure and arms of government.
8. Constitution declares the constitutional guarantee and secures the fear of minority in a
nation.
9. To set fort the structure, functions and powers of government at all level, federal, state
and local government.
10. To inform the people about the qualifications of those expected to aspire to positions in
the political activities of the nation.
11. To define the relationship between the citizen and the government
12. To state the modalities for generating and sharing the resources of the nation, eg. public
revenue and exploitation of the mineral resources.

14
 13. To guarantee the fundamental rights of the citizen.
14. It is a social contract and as well guarantee equality, socio economic and political, social
justice.
15. To guarantee the independence, impartiality and integrity of the judiciary and easy access to
court by aggrieved persons.
16. To provide constitutional and judicial remedy for unconstitutional matters.
19. Establish the basis for registration of political parties, forms of government and ensures
franchise of the citizen to express their sovereign power under a constitutional democracy.

10. Sources of a Constitution

The sources of the various provisions found in a Constitution are many, such as the past
experiences of the country. According to Shokenfu19 the sources of the various provisions found
in a constitution such as the past experiences of the country eg. social economic, political,
geographical and notable historical documents such as the British Magna Carta of 1215,
American Bill of Right statutes passed by parliament, decrees and edicts of military government,
the intellectual works of eminent writers, jurists, historians, philosophers, essayists and
statesmen such as John Locke, A.V. Dicey as well as case law or judicial precedents, customs
and way of life of the people, rules and conventions guiding human behaviour, the constitutions
of other countries, the deliberations of constitutional conferences or Constituent Assemblies
which may draft the constitution of the given country, rules of international law. Also important
as source of the Constitution is the Royal Prerogative. The royal prerogative consists of a
number of powers or privileges in the past performed by the monarch but now performed by
ministers on his or her behalf. Their authority is derived from the Crown, not Parliament.
Examples of these powers include the right to declare war, make treaties, give orders to the
armed forces, dissolve parliament, appoint ministers and dispense honours.

11. Types of Constitution and their Advantages and Disadvantages:

According to Malemi, for a particular type of constitution to be prescribed, there is the need to
have an in-depth knowledge of the various types of constitutions. They are:
1. Written and unwritten constitutions

19
Prof. Shokenfu; Constitutional law I, NOUN

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 2. Rigid and Flexible Constitutions
3. Unitary, Federal and Confederal Constitutions
4. Democratic and republican constitution.

Types of Constitutions20
A written constitution is the body of rules and laws that govern a people which can be found in
one document. It is a result of a deliberate framing and adoption of a specific document intended
to embody most of the fundamental rules and institutions by which a state is to be governed.
From historical accounts, for about the last two centuries, almost all constitutional governments
have had written constitutions, usually in the form of a single basic document. It is different from
an ordinary law because it defines the fundamental framework and system of restraint within
which the state operates. It is in this sense that a written constitution can be referred to as the
supreme law of the land. In another sense, it is an embodiment of the political principles and
institutional patterns that are so fundamental as to be considered indispensable. Some of the
countries that operate written constitutions include Canada, Ghana, India, Nigeria and the United
States of America.
(a) Written Constitution21

The majority of constitutional democracies in the world today have written constitutions.
Clearly, there must be some compelling advantages of a written constitution over an unwritten
constitution.

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CSS204 INTRODUCTION TO POLITICAL SCIENCE (NOUN)

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https://www.cegastacademy.com/2022/07/14/advantages-and-disadvantages-of-a-written-constitution/
(assessed on 15th April, 2023)

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1. Protection of Minority Interests

2. High Sense of Certainty

3. Easy to Consult

4. Difficult to Manipulate

5. Clear Separation of Powers

Disadvantages of a Written Constitution

Just like every other thing, a written constitution has some disadvantages too. Critics of a written
constitution point to such disadvantages as its expensive nature, its complexity and its tendency
to delay government action, especially during an emergency.

1. It is expensive to operate

2. It is too rigid.

3. A written constitution delays decision-making.

4. It can create conflict within the government.

5. It undermines efficiency in government.

6. Written constitutions are difficult to understand.

Unlike the unwritten traditions and conventions associated with the unwritten constitution, the
language used in writing a written constitution could be too technical for ordinary citizens to
read and understand. Thus, citizens tend to lose interest in their written constitution because it is
voluminous and requires a lot of effort to comprehend what it is saying. In fact, most written
constitutions easily become the exclusive preserve of constitutional lawyers and other members
of the political class.

(b) Unwritten constitution

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Generally, constitutions are said to be unwritten because they have evolved on the basis of
custom rather than on written law. The reference point in this regard remains that of Great
Britain. This is because it is a combination scattered in several documents and drawn from
diverse sources from the 13th century to the present. The constitution constitutes of four basic
elements of which only one is written in black and white.
In the first instance, an unwritten constitution consists of documents and statues which have
provided solutions to successive constitutional crisis. These include the Margna Carta of 1215;
Petition of Rights, 1628; Bill of Rights, 1689; The Reform Act of 1832 and the Parliamentary
Act of 1911. Each of these documents represent a landmark in British constitutionalism.

The third element of the unwritten constitution is the great mass of laws created by many
generations of English judges. For instance, freedom of speech, press, assembly and the right to
trial by jury are firmly protected by established principles of the common law rather than any Act
of Parliament. These principles are essential in restraining the power of the government and as
such constitute a vital element of British constitution.
The fourth element of the unwritten constitution are customs and conventions. These
conventions are not embodied in written law or judicial decisions, but have gradually evolved
over many generations.

Advantages of the Unwritten Constitution22

Here come the advantages of the unwritten constitution. They are what make it more suitable for
homogeneous societies with political traditions dating far back into their history.

1. Unwritten Constitutions are Flexible

2. Quick Decision Making
3. Improved Efficiency in Government

4 . Relevance to Current Needs

5. Avoidance of Conflict Situations

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Ralph Nyadzi: https://www.cegastacademy.com/2022/07/21/advantages-of-the-unwritten-constitution-and-
disadvantages/

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6. It Is Less Expensive to Operate

7. It is Easy to Understand

The Disadvantages of Unwritten Constitutions

1. Easy to Manipulate

2. Inadequate Protection of Minorities

3. Too Frequent Constitutional Changes

4. It Is Difficult to Consult an Unwritten Constitution

5. Unwritten Constitutions Lack Certainty

6. No Clear Separation of Powers

In Conclusion, it is imperative to state that while the advantages of an unwritten constitution

make it look more desirable than the written one, there are equally many weaknesses of
unwritten constitutions. These disadvantages of the unwritten constitution make most modern
states choose the written one over it.

(c) Rigid and Flexible Constitutions

A rigid constitution is a constitution which the procedures for amendment are cumbersome and
rigorous. Most federal states are known to operate rigid constitutions. There is always the
impression that a written constitution is simultaneously rigid and that an unwritten constitution is
flexible. However, the major distinguishing factor between a rigid and flexible constitution is not
on whether it is written or unwritten, but whether the process of constitutional law making is or
is not identical with the process of ordinary law making. Therefore, a constitution which can be
amended or altered without recourse to any special agreement could be termed a flexible
constitution, while a constitution which requires a special procedure for its alteration or
amendment is a rigid constitution. Example is the Nigerian Constitution which has made it

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difficult for any civilian government to adjust boundary or create state in Nigeria. Section 9
CFRN, 1999 as amended states the mode of alteration of the constitution.
(d) Unitary and Federal Constitutions

Under a unitary constitution all legal sovereignty is contained in a single place. Example of
unitary constitution Britain’s constitution which is unitary. The UK has no states, so whilst
Central government can choose to give out powers to devolved assemblies and local councils it
can take those powers back at any time as they are not guaranteed by the constitution. This has
happened with Northern Ireland when the Stormont government was suspended as the
Nationalist and Unionist politicians couldn’t agree on power sharing. This is contrasted with
federal systems like the USA, Germany, Nigeria where power is divided between a central
(federal) government and various states23.

Advantages of Unitary Constitution

An advantage of unitary constitution is that the government formed under this constitution is
single and decisive. Also, a unitary government is very simple system, and as such less costly to
run. Another advantage of a unitary government is that the laws of the unitary system, unlike in a
federation, are uniform because laws are made only by a single central government for the whole
state.

In a unitary state, citizens only owe their allegiance to the central government. This could
promote national unity. The unitary system is good for countries that are geographically smaller
in size. Less expensive, engender harmony among the various ethnic groups in the country
leading to internal stability and the unitary system allows for quick decision-making.

Disadvantages of Unitary Constitution

 Since all the powers are concentrated at the centre, the burden of work becomes too
heavy.
 A disadvantage of a unitary system of government is the tendency to become dictatorial.

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https://www.tutor2u.net/politics/topics/unitary-state (assessed on 15th April, 2023)

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  There is hardly room for experiments to figure out the pitfalls and loopholes of
policies rolled out by the government.
 Under some circumstances, the distribution of national resources might not be even, as
some regions might be neglected for political reasons. In other words, some minority
interests could be neglected.
 Many citizens under unitary governments are used to waiting for the central government
to initiate and implement policies and this could stifle local initiatives.

.The nature of the state also determines the type of constitution it operates. Most modern states
are either unitary or federal. In accordance with this notion, unitary and federal states can be
differentiated from a con-federal state.

In a federal state or under the Federal constitution, the number of the coordinate units unite for
certain common and mutual purposes. Under a federal constitution, the powers of the central or
federal authority are limited by certain powers which the units retain in furtherance of the
common purpose. The constitution in this situation determines the distribution of power between
the centre and regional units. The constitution also states those rights that are to be retained by
the federating units and those that are taken over by the federal authority.

Attributes of a good constitution

According to Malemi, a good constitution, whether it is written or unwritten should among other
things have the following Features:
1. Stability of form and procedure: this means that the constitution should have some
elements of rigidity in order to safeguard it to unnecessary whims and caprices of
desperate politicians who wish to change the constitution too regularly.
2. Adaptability: the constitution should be adaptable to socio-political, economic,
technological and another changes that are inevitable in the life of the country for its
development and progress. The constitution should be elastic and also be able to meet
the ever changing social, economic and political needs of the country. The doctrine of
necessity was used when Nigeria as a nation was faced with who was to take up the
mantle of presidency when Late President Yar’ Adua was critically ill. The Attorney

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 General of Bendel State v. Attorney General of Nigeria & 22 Ors 24 is relevant in this
regard.
3. Accountability and Responsibility: a good constitution must contain machinery for the
accountability of those that control the machinery of the government to the people. The
responsibility and accountability of the public officers, government and public
institutions in the country or the general public are features of a good and workable
constitution.
4. Representative Nature: This means a representative parliament like the House of
Representatives, national Assembly, in Nigeria, France, UK, South Africa , which is
made up of the elected representatives of the constituent parts of the country and people.
Another level of representative nature created by the Constitution is the federal character
arrangement for employing people into the public office.
5. Openness Feature: This means that the affairs of the nation must not be carried out in
secrecy or in a clandestine manners.
6. Separation of Powers in the government among the three arms of government are
expected to be contained by the grundnorm.
7. The structures of the government must be established by the constitution to ensure seamless
conduct of the state affairs.

12 CONCLUSION:
The role of the Chairman of Constitutional Drafting Committee is complex one. Consequently
describing a constitution to a new nation requires much to be said about the nature of a
constitution. This work has established that a constitution is a fundamental document and a
frame work upon which the entire laws, structure of the government of a new nation,
fundamental rights and duties of the citizen are enshrined. Principles of sovereignty, the rule of
law, supremacy of the constitution, federalism, checks and balances, parliamentary sovereignty
or constitutional supremacy, accountability, separation of powers etc are the guiding principles
of constitutional making as contained in this work. While there are written and unwritten
constitutions, unitary and federal, flexible and rigid constitution, the world has been able to tilt
towards written constitutionalism which has no doubt brought stability to France, America and

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(1982) All NLR 85.

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south Africa as well as India. The written constitution is an opportunity for various factions and
heterogeneous nations to come together to define their relationship and political structure as done
in Nigeria, US. South Africa. However it has its obvious limitations which is a feature of
rigidity. In the same vein, it has been observed that nations that have large geographical area and
heterogeneous embrace a federal structure that divide powers amongst the federating units.

13. RECOMMENDATION
Having Described a constitution to a new nation it is important to recommend that from the
current trends and global best practice, a new nation should endeavor to embrace a written from
as it will contain the fundamental principles in black and white and capable of guaranteeing the
rights and duties of the citizens. Though in written form, the constitution should provide for a
measure of flexibility and opportunity for a referendum to ensure citizens are carried along in the
operation of the government.

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