ACTUALIZING A NEW DEMOCRATIC CONSTITUTION FOR NIGERIA: LEGAL & LEGITIMATE PROCEDURES
BY
PROF. MIKE OZEKHOME, SAN, CON, OFR, LL.D
ON
16th JULY, 2025
AT THE
NATIONAL SUMMIT ON THE FUTURE OF NIGERIA’S CONSTITUTIONAL DEMOCRACY CONVENED BY THE PATRIOTS IN CONJUNCTION WITH NIGERIA POLITICAL SUMMIT GROUP (NPSG)
TABLE OF CONTENTS
1.Opening
oSalutations and Protocol
oWhy This Summit Matters
oThe Fraudulent Origins of the 1999 Constitution
oA Call for Constitutional Rebirth
2.Understanding Constitutional Democracy
oThe Constitution as a Social Contract
oThe Doctrine of Constituent Power
oLegality vs Legitimacy
oGlobal Examples of People-Owned Constitutions
3.The Current Constitutional Framework: A Critical Appraisal
oImposed by Military Decree: The Myth of “We the People”
oStructural Flaws in the 1999 Constitution
oOver-centralisation and Fiscal Injustice
oFailed Attempts at Reform via Section 9
oThe Absence of Autochthony
4.Legal Pathways to a New Constitution
oThe Nwabueze Thesis and the Role of the National Assembly
oRepealing Decree 24 and Replacing the 1999 Constitution
oThe 2014 National Conference as a De Facto Constituent Assembly
oThe Need for a Referendum
oPrecedents from South Africa, Kenya, and the USA
5.Legitimate and Democratic Processes for Constitution-Making
oThe Four Pillars of a Legitimate Constitutional Process
Inclusivity
Transparency
Democratic Representation
Popular Ratification
oProposed Step-by-Step Procedure
Enacting a Referendum Law
Collating Constitutional Materials
Drafting and Civic Engagement
National Referendum
Presidential Proclamation
6.Addressing Fears and Misconceptions
oThis is Not a Call for Disintegration
oWhy Amendment Will Never Suffice
oThe Proper Role of the National Assembly
oWe Do Not Need a New Conference — Just Implementation
7.The Role of Key Stakeholders
oThe National Assembly: Midwife of the People’s Will
oThe Executive: Proclaimer of a New Order
oThe Judiciary: Guardian of Due Process
oCivil Society and Legal Community: Drivers of Public Awareness
oTraditional and Religious Leaders: Cultural Anchors
oThe Nigerian People: Ultimate Sovereigns
8.Conclusion: The Time is Now
oWe Must Discard the Illegitimate
oWe Must Embrace a Lawful, People-Driven Future
oLet Nigeria Take Her Place Among Nations
oLet the Rebirth Begin
I.Opening.
Your Excellences, distinguished colleagues at the Bar and the Bench, eminent statesmen, honorable members of the National Assembly, ladies and gentlemen.
Permit me to begin by expressing my profound gratitude for the invitation to speak at this National Summit on the Future of Nigeria’s Constitutional Democracy. This is not just another gathering of legal minds and political thinkers — it is, in my respectful view, a historic moment pregnant with the hope of rebirth, with the urgency of now.
We stand today at a critical crossroads in our nation’s Constitutional journey. On one path lies continued stagnation — the perpetuation of a Constitutional order birthed in secrecy, shrouded in illegitimacy, and imposed by military fiat. On the other lies the possibility of Constitutional renaissance — the actualisation of a new people’s Constitution that is democratically legitimate, home-grown, and reflective of the will of Nigerians.
A Constitution is not merely a legal document; it is the organic soul of a republic, a mirror reflecting the values, structures, and aspirations of a people. It defines not only how power is acquired and exercised, but also the character and conscience of government, delineating the boundaries of authority and the rights of the governed. Whether codified in a single written document or scattered across customs, statutes, and legal conventions, the Constitution occupies a sacred space in the life of a nation: it is the supreme law, and the fountain from which all lesser laws must draw their legitimacy.
“We the People”, these are three words that should be filled with authority, with consent, and with the collective conscience of a sovereign people. Yet in the case of Nigeria, these words echo with irony and discontent. They form the preamble of the 1999 Constitution of the Federal Republic of Nigeria, a document that claims democratic origin but stands accused of authoritarian intent.
Indeed, the 1999 Constitution purports to be a foundational expression of popular will. It announces itself as the voice of Nigerians, the instrument through which power is conferred, and by which the governed agree to be governed. But a sober interrogation of its origin raises a haunting question: Was this Constitution truly birthed by the Nigerian people? Or was it a legal fiction imposed by decree, a unilateral artifact crafted by a small clique of military elites and imposed upon a weary nation at the turn of a new republic?
The circumstances surrounding the promulgation of the 1999 Constitution are neither hidden nor contested. It was drafted by handpicked committees under the directive of a departing military regime, devoid of a referendum, stripped of open debate, and ratified not by ballots but by decree[ Law Pavilion, ‘How the 1999 Constitution of the Federal Republic of Nigeria was Crafted by the Military between 1998 and 1999’ https://lawpavilion.com/blog/how-the-1999-constitution-of-the-federal-republic-of-nigeria-was-crafted-by-the-military-between-1998-and-1999/ accessed 9 July 2025]. There was no Constitutional conference open to the people. No plebiscite to confer consent. No democratic covenant forged in transparency. In essence, it was a top-down creation masquerading as a bottom-up agreement. Can such a document, by any measure, claim the legitimacy of a “government of the people, by the people, and for the people” — the very essence of democracy, as immortalized by Abraham Lincoln in his Gettysburg Address of November 19, 1863?
The Nigerian Constitution, as it stands, is a paradox. It grants freedoms but was not born in freedom. It speaks of justice but was not established justly. It claims to reflect the aspirations of over 200 million citizens, yet its words were not debated by them, nor adopted through any legitimate democratic procedure. This Constitutional contradiction has not merely legal consequences — it has birthed a legitimacy crisis, a persistent national discontent, and a growing call for renewal. The very soul of Nigerian democracy is suffocated under the weight of a document that lacks the moral and political consent of the people.
Moving further, it would be helpful to lay a historical background of the Constitutional development. Prior to colonial intrusion, the regions now called Nigeria functioned as independent entities governed by indigenous systems. These pre-colonial polities viz: the Oyo Empire, the Sokoto Caliphate, the Benin Kingdom, and numerous others operated with their own customary laws, spiritual hierarchies, and judicial institutions. Though unwritten, these codes held immense authority, reflecting the culture, religion, and values of their people. In a very real sense, they were Constitutions that were living, breathing, legitimate. But this organic order was soon supplanted by the machinery of empire.
In 1900, following the transfer of control from the Royal Niger Company to the British Crown, the territories were reorganized into three separate entities: the Protectorate of Northern Nigeria, the Protectorate of Southern Nigeria, and the Colony of Lagos.[ ‘British Colonial Policies and the Challenge of National Unity in Nigeria, 1914-2014’
https://journals.co.za/doi/full/10.18820/24150509/SJCH47.v1.3 accessed 9th July 2025] These divisions were governed directly by British administrators with no Constitutional structure in the modern sense. Governance was by proclamation, and policy was dictated from Whitehall. However, the British did not govern blindly. Their ultimate goal was administrative consolidation, and that moment came in 1914, when Lord Frederick Lugard amalgamated the northern and southern protectorates into a single entity called Nigeria.
This amalgamation, however, was administrative rather than political. There was still no formal Constitution; rather, governance remained centralized under the Governor-General with minimal input from indigenous populations. It wasn’t until 1922 that Nigeria would receive its first true Constitutional document called the Clifford Constitution[ 1999 Constitution controversy: Operators to blame not document, says Okunnu
https://thenationonlineng.net/1999-constitution-controversy-operators-to-blame-not-document-says-okunnu/ accessed 9th July 2025]. This marked a significant shift. For the first time, limited political representation was extended to Nigerians, particularly in Lagos and Calabar, through the introduction of elective principles. Yet, its scope was extremely narrow. It applied only to a small educated elite in the South, leaving the North virtually untouched and maintaining the British Crown as the ultimate authority.
The next major development came in 1946 with the Richards Constitution, named after Governor Arthur Richards. This framework aimed to create greater Nigerian participation while preserving British control. It formally recognized the existence of three regions — Northern, Western, and Eastern— and established regional legislative councils alongside a central legislative council. However, the document was drafted with minimal consultation, drawing intense criticism from nationalist leaders who decried its top-down nature. Nonetheless, the Richards Constitution laid the foundation for regionalism, a structural principle that would dominate Nigerian politics for decades to come.[ Nigerian Scholars, ‘Arthur Richards Constitution’
https://nigerianscholars.com/tutorials/west-african-constitutional-development/arthur-richards-constitution/ accessed 9th July 2025]
In response to mounting agitation, the British adopted a more consultative approach in 1951 through the Macpherson Constitution. For the first time, the document was crafted with inputs from Nigerians at the village, regional, and national levels. It expanded regional autonomy, created a more robust House of Representatives at the federal level, and deepened the practice of federalism. Still, it failed to resolve ethnic tensions[ Djet Lawyer, History of Nigerian Constitutional Development
https://djetlawyer.com/history-nigerian-constitutional-development/ accessed 9 July 2025]. If anything, it heightened them by entrenching regional loyalties and competition. The East, West, and North now had separate political ambitions, and the struggle for power became deeply fractured along ethnic lines.
By 1954, the British had accepted that Nigeria could no longer function as a unitary state, and so the Lyttleton Constitution was introduced — the first to enshrine true federalism. It formalized the division of powers between the central and regional governments, introduced regional Premiers, and granted the judiciary independence. Importantly, it acknowledged Nigeria’s diversity not as a weakness but as a structural reality. This Constitution would serve as the bridge to independence.
Between 1957 and 1959, a series of Constitutional conferences were held in London, where Nigerian leaders — now seasoned in negotiation and nationalist rhetoric — shaped the final terms of the country’s sovereignty[ Class Notes Ng, https://classnotes.ng/lesson/london-constitutionalconference-of-1957-and-lagos-constitutional-conference-of-1958-government-sss2/ accessed 9 July 2025]. These discussions produced the 1960 Independence Constitution, which officially ushered Nigeria into statehood on October 1st of that year. It retained the federal structure and adopted a parliamentary system, with a ceremonial British monarch as Head of State, represented by a Governor-General. Though technically independent, Nigeria remained tethered to the Crown, symbolically and structurally.
In 1963, the Republican Constitution broke that final colonial chain. The Queen was removed as Head of State and replaced with a ceremonial Nigerian President[ Nigerian Scholars, ‘Nigerian 1963 Republican Constitution’ https://nigerianscholars.com/tutorials/west-african-constitutional-development/nigerian-1963-republican-constitution/ accessed 9th July 2025]. The parliamentary system remained, and federalism was upheld. Yet, beneath this formal progress, structural imbalances persisted. Ethnic divisions, unequal resource distribution, and regional tensions began to boil over. By 1966, the system collapsed under the weight of its contradictions. A military coup annulled the Constitution, dissolved the regional governments, and suspended democratic rule. What followed was nearly 13 years of military domination.
During this interregnum, the search for a new Constitutional order continued. General Murtala Muhammed, before his assassination in 1976, initiated the process of creating a new democratic Constitution. The outcome was the 1979 Constitution, which introduced a radical shift: Nigeria adopted the American-style presidential system. The President became both Head of State and Head of Government, a clear departure from the British parliamentary model. This framework sought to strengthen national unity by establishing a strong central figure above ethnic squabbles. However, the experiment was short-lived. In 1983, the military struck again, citing corruption and mismanagement.
Another abortive attempt emerged in 1993. A new Constitution was drafted in anticipation of a return to civilian rule under the Third Republic, but General Babangida’s annulment of the June 12 election — won by Chief M.K.O. Abiola — plunged the nation into a Constitutional crisis. That document, though lauded for its progressive ideals, never saw the light of day[ Open Books Edition, ‘The Management of Transition to Civil Rule by the Military in Nigeria (1966-1996)’ https://books.openedition.org/ifra/634?lang=en accessed 9th July 2025].
Finally, in 1999, following the death of General Sani Abacha and the transitional leadership of General Abdulsalami Abubakar, Nigeria adopted the 1999 Constitution, which remains in force today. It retained the presidential system and federal structure, enshrined fundamental rights, and established democratic institutions. Yet, it has not escaped criticism. Issues of resource control, state autonomy, and electoral justice remain unresolved.
The 1999 Constitution, despite its lofty preamble, lies about its origins. It begins with the deceptive proclamation: “We the People of the Federal Republic of Nigeria…” — yet, we the people were neither consulted nor called upon to ratify it by way of referendum. What we received instead was a schedule to Decree No. [ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.]24 of 1999, drawn up in secrecy by a military cabal of twenty-eight individuals, not a constituent assembly of sovereign Nigerians.
For over two decades, we have tried — in vain — to plaster this faulty foundation with endless amendments. But as I have often argued and will continue to argue, you cannot treat Constitutional cancer with a skin balm[ Ibid]. You cannot make a child of bastardy legitimate by merely changing his surname. The time has come for us to discard this illegitimate document and, in its place, give birth to a new Constitution for the people, by the people.
II. Understanding Constitutional Democracy
Let us return to first principles.
A Constitutional democracy is one in which the Constitution is not merely a legal instrument, but a social contract between the government and the governed. It is a document that derives its legitimacy not from guns or decrees, but from popular consent.
According to Professor Ben Nwabueze, arguably Africa’s most distinguished Constitutional scholar, a Constitution must not only establish the organs of state, but also emanate from the sovereign will of the people[ Nwabueze, B. (1982). The Presidential Constitution of Nigeria. London: C. Hurst & Co]. He called this principle the doctrine of constituent power — that is, the sovereign right of the people to give themselves a Constitution.
The failure to do this is what robbed both the 1979 and 1999 Constitutions of legitimacy. Professor Yemi Osinbajo, writing in the Nigerian Bar Journal in 2002, admitted that the process of reform through Section 9 of the current Constitution — which focuses solely on legislative amendments — is insufficient to produce a truly democratic Constitutional order[Osinbajo, Y. (2002). Constitutional Reform in a Democratic Society. Nigerian Bar Journal, Vol. 1, No. 3.]. A Constitution must be rooted not just in legality but in legitimacy, and that legitimacy flows from participation — from the people themselves.
Globally, we have seen inspiring examples: South Africa’s post-apartheid Constitution was the product of the largest public participation programme in its history, involving hundreds of thousands of ordinary citizens[ Report of the 2014 National Conference (Volumes I–III), Office of the Secretary to the Government of the Federation.]. Kenya’s 2010 Constitution was approved by 67% of its citizens in a national referendum. The United States birthed its enduring Constitution through a Constitutional Convention of delegates from thirteen states and ratified it through state-by-state referenda[ Ibid ].
This is the path Nigeria must now boldly take.
A people’s Constitution cannot emerge from the narrow chambers of a legislature or be the product of executive benevolence. It must be deliberated, debated, and adopted by the people whose lives it is meant to govern.
III. The Current Constitutional Framework: A Critical Appraisal
Distinguished colleagues, I make bold to say — without fear of contradiction — that the 1999 Constitution of the Federal Republic of Nigeria is a fundamental fraud. It is a tragic irony and a Constitutional deceit of the highest order. Let us not pretend. Let us not equivocate. Let us look at this beast in the face and call it by its name.
The 1999 Constitution was not made by the Nigerian people. It is a child of military arrogance, imposed on us like a conquering edict. It is merely a schedule to Decree No. 24 of 1999, signed into law by General Abdulsalami Abubakar and never subjected to the consent of Nigerians through a referendum. Yet it dares to proclaim in its preamble: “We the people of the Federal Republic of Nigeria… do hereby make and give to ourselves the following Constitution” — a bald-faced lie if ever there was one[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.] .
Can a people who were never consulted, never convened, never allowed to decide their own destiny truly be said to have “given themselves” a Constitution? Absolutely not. As Professor Ben Nwabueze rightly submitted, a Constitution must be autochthonous — that is, it must be indigenously made and owned by the people whose lives it seeks to govern[ Nwabueze, B. (1982). The Presidential Constitution of Nigeria. London: C. Hurst & Co.]. The 1999 Constitution fails that sacred test. It has no autochthony, no moral standing, no people’s mandate.
Worse still, the content of the Constitution is as problematic as its process. What we operate today is a unitary Constitution masquerading as federalism. It centralises power in a way that stifles innovation, smothers local governance, and mocks the diversity of our federal structure. Resource control is hoarded by the centre. State police is forbidden. Local governments are strangled. The Exclusive Legislative List is bloated with over 68 items, leaving little room for states to legislate for their people’s peculiar realities[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.].
The document has also entrenched a culture of unaccountability and impunity. Immunity clauses shield public officers from prosecution while in office. A bloated bicameral legislature consumes resources without commensurate output. Elections are routinely undermined by fraud and judicial manipulation. Electoral reforms are stifled. Chapter II — the so-called Fundamental Objectives and Directive Principles of State Policy — is declared non-justiciable, meaning no Nigerian can enforce their right to education, housing, welfare, or development under the Constitution[ Ibid].
Even the process of amending this defective Constitution is designed to be nearly impossible. Section 9 imposes a near-insurmountable hurdle — two-thirds of both Houses of the National Assembly, two-thirds of 36 State Houses of Assembly, and Presidential assent. Yet, despite these legal gymnastics, the resultant document would still lack what Professor Yemi Osinbajo called “democratic legitimacy” because it was never submitted to the Nigerian people[ Osinbajo, Y. (2002). Constitutional Reform in a Democratic Society. Nigerian Bar Journal, Vol. 1, No. 3.].
Therefore, I ask: can one truly amend a rotten tree and expect sweet fruit? Can one multiply one million amendments by another million and expect legitimacy to spring forth? The answer is resoundingly no. The 1999 Constitution is not flawed in detail; it is flawed in origin, in spirit, and in substance. And as such, it must be discarded, not patched. It must be replaced, not reworked.
IV. Legal Pathways to a New Constitution
Having laid bare the fatal deficiencies of the current Constitutional order, we must now turn our gaze to the horizon of hope — how do we legally and legitimately actualise a new people’s Constitution for Nigeria?
Let me begin by stating emphatically that there is a lawful, legitimate, and practical path to birthing a new Constitution — and it does not require a revolution, nor does it necessitate the abrogation of the rule of law. Rather, it requires courage, political will, legislative dexterity, and above all, the engagement of the Nigerian people.
A. The Nwabueze Thesis: Legal Possibility through the National Assembly
One of the most compelling legal frameworks for this process was proposed by the late, great Professor Ben Nwabueze. In his seminal paper, “Legal Authority for the Convening and Holding of a National Conference and for the Making of a People’s Constitution,” the professor argues that the National Assembly has the power — under Sections 4, 8, and 9 of the 1999 Constitution — to legislate for the convening of a constituent assembly or national conference[Nwabueze, B. (1982). The Presidential Constitution of Nigeria. London: C. Hurst & Co.].
He further maintains that the 1999 Constitution, having been enacted via Decree No. 24, qualifies as “an existing law” under Section 315 of the same Constitution, and can therefore be repealed or amended in whole or in part by an act of the National Assembly[ Ibid ]. According to Nwabueze, this would allow the National Assembly to legally midwife the repeal of the existing Constitution and the promulgation of a new one, without resorting to extra-Constitutional means.
Yet, with all respect to my learned elder, I submit that his brilliant thesis — though elegant — falls short of addressing the legitimacy deficit. It answers the legal question, yes. But not the moral question. It tells us how we can replace the Constitution, but not how we can redeem it of its original sin. For that, we must go beyond the halls of parliament and return to the source of all sovereignty — the people.
B. The 2014 National Conference: Nigeria’s De Facto Constituent Assembly
In 2014, under President Goodluck Jonathan, Nigeria held what I boldly consider our most comprehensive attempt yet at a true Constitutional convention. I was privileged to serve at that National Conference, heading the Sub-Committee on Constitution Drafting, Human Rights and Legal Reforms. We debated. We disagreed. But ultimately, we reached consensus on over 600 recommendations[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.].
Those 492 delegates came from every corner of this country — states, LGAs, labour unions, women’s groups, civil society, youth bodies, professional associations, religious and traditional institutions. No sector was left behind. It was, in effect, a constituent assembly — a microcosm of the Nigerian people.
Some have criticised the conference for not being elected. But I ask: were the 28 men who imposed the 1999 Constitution elected? Were they even accountable? The 2014 delegates were certainly more representative and more inclusive than any cabal or military council. We agreed that Nigeria needs a brand-new Constitution, one that reflects fiscal federalism, state policing, regional autonomy, true separation of powers, and social justice[ Ibid].
Therefore, the National Assembly should not waste time reinventing the wheel. It should enact a law that aggregates:
the 2014 National Conference Report,
the best elements of the 1963 Republican Constitution,
and the recommendations from its ongoing Constitutional review committees.
Let this collation be submitted to the people — not through their representatives, but through their direct vote in a national referendum[ Ibid] .
C. The Referendum Option: Let the People Speak
A Constitution that does not bear the people’s voice cannot claim their loyalty. That is why a referendum is indispensable. The National Assembly must enact a law establishing a National Referendum Commission (NRC), empowered to conduct a nationwide referendum on the draft Constitution[ Ibid].
The legal foundation for this exists within:
Sections 4, 13, 14, and 315 of the 1999 Constitution, and
Items 47, 67 and 68 of the Exclusive Legislative List[ Ibid] .
Through this legislative route, we can subject the draft to a yes or no vote of the Nigerian electorate. Should the people approve, the President — exercising his powers under Section 5 — shall proclaim the new Constitution into force. And for the first time in our history, Nigeria will have a document that can truthfully declare: “We the People… do hereby give to ourselves this Constitution.”
D. Precedents from Other Nations
We are not alone on this path. Many nations have trod it before:
South Africa, after apartheid, convened a Constitutional assembly and subjected its draft to judicial review and public endorsement[ Report of the 2014 National Conference (Volumes I–III), Office of the Secretary to the Government of the Federation.].
Kenya, in 2010, ratified a new Constitution by popular referendum, with 67% approval[ Ibid].
Bangladesh, Eritrea, Tunisia, Iran, and even the United States in 1787–1789, all ratified their founding documents through direct participation of their people[ Ibid] .
In fact, the Mid-West Region of Nigeria was created in 1963 through a referendum — right here on our own soil[ Ibid n.1].
Why should Nigeria, the so-called giant of Africa, remain shackled to a military-imposed decree when smaller, younger nations have found the courage to reclaim their democratic destiny?
V. Legitimate and Democratic Processes for Constitution-Making
Distinguished ladies and gentlemen, it is one thing to clamor for a new Constitution — that, in itself, is noble and necessary. But it is an entirely different matter to achieve it through legitimate and democratic processes that are lawful, inclusive, and people-driven. This is where we must be guided not merely by legalism, but by wisdom; not only by jurisprudence, but by justice.
Permit me to say that a Constitution that is to endure — that must bind over 200 million diverse Nigerians — cannot and must not be the brainchild of a few elites in Abuja or an exclusive conclave of political actors in the National Assembly. It must not be imposed by presidential fiat or crafted under the secret shadow of a junta, as was the case in 1999. It must be birthed by the people. Debated by the people. Adopted by the people. And owned by the people[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.].
The central thesis here is clear: process confers legitimacy. A beautiful Constitution, crafted by a bad process, will remain illegitimate. But even an imperfect Constitution, emerging from a good process — one that is inclusive, participatory, and transparent — will carry the moral weight of the people’s consent. That is the essence of democratic Constitutionalism.
A. The Four Cardinal Principles of a Legitimate Constitutional Process
For Nigeria to birth a new democratic Constitution, the process must rest on four cardinal pillars:
1.Inclusive Participation: Every segment of Nigerian society — from Sokoto to Calabar, Maiduguri to Yenagoa — must be represented. This includes women, youth, the physically challenged, civil society groups, the labour movement, religious institutions, traditional rulers, private sector leaders, and most importantly, the ordinary Nigerian in the marketplace and the farmstead[ Osinbajo, Y. (2002). Constitutional Reform in a Democratic Society. Nigerian Bar Journal, Vol. 1, No. 3.].
2.Transparency and Openness: All proceedings of the Constitution-making body must be public. No secrets. No backdoor deals. Every article must be debated in the open, under the sun of public scrutiny. We saw this model in South Africa’s 1996 Constitution, whose drafting process included over two million submissions from ordinary citizens[Osinbajo, Y. (2002). Constitutional Reform in a Democratic Society. Nigerian Bar Journal, Vol. 1, No. 3.].
3.Democratic Representation: Members of the Constitution-drafting body — whether elected directly or appointed — must enjoy moral legitimacy and public trust. In 2014, the National Conference delegates, although not elected in the traditional sense, were drawn from every corner and class of Nigeria. They represented a broader cross-section of Nigeria than any military junta or elite cabal ever has[ Ozekhome, M. (2025). Lawful Procedures for Actualizing a People’s Constitution for Nigeria.] .
4.Ratification through Referendum: After the draft Constitution is finalized, it must be subjected to a national referendum, where the Nigerian people say either “Aye” or “Nay”. That is the democratic seal. That is what confers autochthony — that magical quality of being homegrown, people-owned, and morally legitimate [ Ibid].
B. Practical Steps for Nigeria’s Constitution-Making Process
How, then, do we actualize these principles? I humbly recommend the following
Step 1: Enactment of Enabling Legislation
There are two lawful pathways to initiate the process of constitutional transition:
Executive Bill Pathway: The President submits an Executive Bill to the National Assembly, requesting authorization for INEC to conduct non-partisan elections into a Constituent Assembly.
National Referendum Commission Pathway: Alternatively, under Sections 4, 13, 14 and 315 of the 1999 Constitution, and leveraging Items 47, 67 and 68 of Part I, Second Schedule, the National Assembly may enact a National Referendum Commission Act. This will establish a legal body—the National Referendum Commission (NRC)—tasked with organizing, educating, and administering the referendum and constitutional transition process.
Both paths are constitutionally grounded and affirm, rather than circumvent, the rule of law.
Step 2: Constituent Assembly or Technical Drafting Committee Formation
Depending on the enabling legislation adopted, the process moves to the formation of a Constitution-drafting body, either by election or appointment:
Elected Constituent Assembly: INEC organizes non-partisan elections into a 109-member Assembly—three representatives from each state and the FCT (one per senatorial district). Candidates are to run on personal merit, not on political party platforms. This approach follows global best practice, as seen in Uganda (1989) and South Africa (1996).
Constitution Drafting Committee (CDC): Alternatively, a diverse body composed of legal scholars, civil society actors, youth, traditional leaders, women, regional representatives, and persons with disabilities can be convened by the Referendum Commission to draft the new Constitution based on harmonized submissions.
In both formats, the drafting body must consult widely, drawing on:
The 1960 Independence and 1963 Republican Constitutions,
The 2014 National Conference Report (over 600 consensus-based recommendations),
Reports from Senate and House Committees on Constitutional Review,
Nationwide submissions from ethnic nationalities, civil society, the military, media, business, academia, labour, diaspora, and more.
Deliberations must be transparent, multilingual, and inclusive—modeled after the 1996 South African process, which received over two million citizen submissions.
Step 3: Public Engagement and Harmonization
Once the initial draft is produced:
The document must be translated into major local languages and subjected to town hall meetings, digital consultations, and public critique across the six geopolitical zones and the diaspora.
The drafters shall revise and harmonize the draft based on inputs received.
This step ensures that the constitution reflects lived realities, promotes civic ownership, and withstands democratic scrutiny.
Step 4: National Referendum
The harmonized final draft is subjected to a national referendum—a democratic mechanism for the people to either accept or reject the new Constitution.
There are two suggested formats:
Single Yes/No Vote on the entire draft (as done in Kenya 2010, Bangladesh 1991).
Clause-by-Clause Referendum, where citizens vote section-by-section, enabling granular endorsement or rejection. This format mirrors the 1963 Midwestern Referendum.
A minimum voter turnout threshold will be set to ensure democratic validity.
Step 5: Presidential Proclamation and Entry into Force
Once the referendum is concluded and the draft is approved:
The President of the Federal Republic of Nigeria, acting under Section 5 of the Constitution and in line with the powers vested in the Executive, shall sign and proclaim the new Constitution into force.
Only then can Nigeria genuinely affirm the foundational democratic statement:“We the people of Nigeria… do hereby give to ourselves this Constitution.”
This process is not about undermining state institutions—it is about restoring them to legitimacy. It blends legality (via executive and legislative action) with legitimacy (via citizen participation and referendum). It affirms that sovereignty resides with the people, not a political class.
This roadmap ensures that Nigeria’s next Constitution is not a product of decree, convenience, or elite consensus, but of collective national will, built through openness, participation, and inclusion.
VI. Addressing Fears and Misconceptions
Let me now, very briefly — but no less forcefully — address some of the recurring fears and myths that often trail the discourse of birthing a new Constitution.
1. “This is a call for disintegration.”
Far from it. A people’s Constitution is not a call for breakup. It is a call for renewal — a re-founding of the Nigerian federation on terms that are just, inclusive, and consensual. In fact, nothing strengthens unity more than justice. A legitimate Constitution gives all groups — majorities and minorities alike — a sense of belonging[ Ibid ].
If anything, a new Constitution will save Nigeria from eventual collapse, by addressing the deep-seated grievances that fuel separatist agitations across the land. Whether it is IPOB in the Southeast, Oduduwa voices in the Southwest, or resource control activists in the Niger Delta — the common thread is Constitutional injustice. Fix the root, and the fruit shall follow.
2. “We already have a Constitution. Why not just amend it?”
That is the problem. We have a Constitution, but not our Constitution. As I have said many times before: you cannot convert a fraudulent document into a legitimate one by mere amendments. You cannot whitewash an illegitimate birth certificate with fresh ink.
Professor Yemi Osinbajo acknowledged that the amendment process under Section 9 is structurally inadequate to deliver a fresh Constitutional vision[Osinbajo, Y. (2002). Constitutional Reform in a Democratic Society. Nigerian Bar Journal, Vol. 1, No. 3.]. Professor Nwabueze warned that the “alteration” powers of the National Assembly do not suffice to replace an entire Constitutional framework[ Nwabueze, B. (1982). The Presidential Constitution of Nigeria. London: C. Hurst & Co.]. I have added: Even a million amendments multiplied by another million will not make the 1999 Constitution legitimate.
3. “What about the National Assembly — will they be side-lined?”
Certainly not. The National Assembly is critical to the process, but not as the maker of the Constitution. Rather, it must serve as the facilitator, the legal enabler, and the guardian of the people’s sovereignty. In fact, it is only through an Act of the NASS that the Referendum Commission can be lawfully established[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.].
But let us be clear: sovereignty belongs to the people, not the parliament. The Constitution says so in Section 14(a). Even the present National Assembly was elected before the 1999 Constitution came into force — thereby underscoring the superior will of the people over any governmental organ[ Ibid].
4. “We don’t need another conference. It will be a waste.”
I respectfully disagree. We already have the product of a national conference — the 2014 Report, which remains Nigeria’s most representative and consensus-driven blueprint. All we need now is not another talk-shop, but a legal process that aggregates, distills, and ratifies that report through a referendum.
It is cheaper to ratify an existing document than to convene another mega-conference. What we need now is not noise, but action. What we need is not inertia, but implementation.
The time for caution is over. The time for excuses has expired. We must now summon the boldness to do what must be done — to lay to rest a Constitution born in secrecy, in imposition, in illegitimacy, and to replace it with one that breathes the spirit of a people who have found their voice, their strength, and their unity in diversity.
To quote Hippocrates: desperate diseases require desperate remedies. And Nigeria is sick — sick with injustice, sick with insecurity, sick with impunity. But we have the cure. The cure is a new Constitution. A people’s Constitution. A legitimate Constitution.
Let us rise. Let us act. Let us give Nigeria back to Nigerians.
VII. The Role of Key Stakeholders
My dear colleagues, fellow Nigerians, democracy is not a solo performance. It is a symphony. And if we are to write and ratify a truly democratic Constitution for Nigeria, every instrument in this orchestra must play its part. No one — I repeat, no one — can sit on the fence.
The task before us is neither trivial nor transactional. It is transformational. It is the redefinition of our national destiny. And for such a sacred task, certain actors must step forward with clarity, courage and conviction.
1. The National Assembly: Midwife, Not Master
Let me begin with the most strategically placed institution — the National Assembly. Some may fear that this process sidelines or diminishes their Constitutional stature. Far from it. In truth, the National Assembly holds the key to unlocking the new Constitutional order. But it must understand its role not as a master or maker, but as a midwife of the people’s will.
The National Assembly must, without hesitation, pass an enabling Act for the establishment of a National Referendum Commission (NRC), as empowered by Sections 4, 8, 13, 14 and 315 of the 1999 Constitution, and the Exclusive Legislative List — specifically Items 47, 67 and 68[Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.]. This commission shall be the independent body that collates, harmonises and prepares the draft Constitution for the people’s decision through a referendum.
Let us be clear: the National Assembly cannot and should not write the new Constitution. Its role is legislative, not constituent. The constituent power belongs to the people — not to senators, not to representatives, but to the 200 million Nigerians whose daily realities cry out for Constitutional justice[ Ibid]. Even the current legislators were elected before the 1999 Constitution was formally in effect — thus underscoring the primacy of the people’s will over even their electoral mandate[ Ibid].
2. The Executive: Willing Facilitator, Not Reluctant Bystander
The President of the Federal Republic of Nigeria, as the custodian of the executive arm of government, must be a willing and proactive facilitator of this process. The President’s powers under Section 5 of the Constitution can and must be deployed to support the referendum process, assent to the NRC Bill once passed, and proclaim the new Constitution into force following its ratification by the people[ Ibid].
A democratic president should not fear the will of the people. Rather, he should embrace it as the fountain from which his legitimacy flows. The President must act like George Washington, who presided over the 1787 Constitutional Convention in Philadelphia and later became the face of the republic the Constitution birthed[Report of the 2014 National Conference (Volumes I–III), Office of the Secretary to the Government of the Federation.].
Let our own President go down in history as the father of Nigeria’s second republic — the real one — birthed not by decree, but by deliberation; not by cabals, but by citizens.
3. The Judiciary: Guardian of the Process, Not Opponent of Progress
The judiciary, our hallowed temple of justice, must rise to its sacred duty — not to thwart the people’s aspirations on technical grounds, but to protect the integrity of the process. Let no mischievous litigation derail what is essentially a democratic exercise.
The courts must see this not as an infringement on legality, but as an expansion of legitimacy. As Prof. Osinbajo correctly observed, Constitutional reform must be assessed not only by the letter of the law but by the spirit of democratic justice[ Osinbajo, Y. (2002). Constitutional Reform in a Democratic Society. Nigerian Bar Journal, Vol. 1, No. 3.]. The courts are the last hope of the common man — and they must not become the stumbling block of a common future.
4. Civil Society and the Legal Community: Voices of Conscience
The role of civil society organisations, the Nigerian Bar Association, academic bodies and professional associations is critical. These groups must drive public awareness, organise civic education, and ensure that the people understand both the stakes and the substance of the proposed Constitution.
They must echo the courage of South African civil society, which mobilised millions during the 1996 Constitutional process, ensuring broad public ownership[ Ibid n 43]. The same must be done in Nigeria. We cannot allow apathy to triumph over advocacy.
5. Traditional and Religious Institutions: Anchors of Cultural Legitimacy
Let no one underestimate the power of traditional rulers, religious leaders, and community elders. These are the custodians of moral and cultural legitimacy in Nigeria. Their endorsement, their participation, their education of the grassroots is non-negotiable.
Even in the 2014 National Conference, these groups played a significant role. Their voices were heard. Their presence was felt. They must again stand as guardians of the people’s interest, bringing wisdom, continuity, and cultural authority to the Constitutional process[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.].
6. The Nigerian People: Ultimate Sovereigns
Above all, the ultimate stakeholders are we the people of Nigeria. The market woman in Aba. The herdsman in Yobe. The teacher in Ekiti. The student in Zamfara. The trader in Onitsha. These are the true authors of our national destiny.
They must not be passive observers. They must become active co-authors of their future. As Professor Ben Nwabueze reminds us, “the people are the principal; the government is merely the agent.”[ Nwabueze, B. (1982). The Presidential Constitution of Nigeria. London: C. Hurst & Co.]
VIII. Conclusion: The Time is Now
Ladies and gentlemen, friends of democracy, I conclude with the urgency and solemnity that this moment demands.
Our nation is at a tipping point. The foundations are shaking. The walls are cracking. The pillars are leaning. The people are groaning. And yet, within this crisis lies our greatest opportunity — the opportunity to rebuild Nigeria, not just with cement and steel, but with the stronger materials of justice, equity, and popular legitimacy.
The present 1999 Constitution is a monument to falsehood, birthed in secrecy, wrapped in military garb, and falsely bearing our names. It has outlived its usefulness. No amount of amendments can clean its stained birth certificate[ Ozekhome, M. (2025). Lawful Procedures for Actualising a People’s Constitution for Nigeria.]. As I have said repeatedly: you do not cure cancer by treating the skin. You do not prune a poisonous tree and expect sweet fruit. You uproot it — root and branch — and plant anew.
The new Constitution must be democratically birthed, legally enabled, and morally legitimate. It must emerge from the people’s will, not from elite consensus. It must reflect our diversity, not deny it. It must guarantee true federalism, not fake unity. It must protect economic justice, not entrench elite privilege.
The process is clear. The pathway is lawful. The precedent is global. Kenya did it. South Africa did it. Ghana did it. Even the Midwest region of Nigeria did it in 1963. The United States of America did it in 1787, with no existing Constitutional provision for a referendum[ Report of the 2014 National Conference (Volumes I–III), Office of the Secretary to the Government of the Federation.]. And in each case, the result was not only a new Constitution — it was a new beginning.
Now is our time. Now is our turn.
Let the National Assembly pass the Referendum Bill.
Let the National Referendum Commission be established.
Let the people be consulted
Let the draft Constitution be debated, approved and voted upon.
Let the President proclaim the new dawn.
And let Nigeria rise from the ashes of its imposed legality to the glory of its earned legitimacy.
Let it be said, in the coming generations, that in the year of our Lord, 2025, Nigeria took her future back — not with bullets, but with ballots; not with agitation, but with participation; not with decrees, but with democracy.
As Hippocrates said, “Desperate diseases require desperate remedies.” And as the Holy Writ teaches us, “If the foundations be destroyed, what can the righteous do?” The answer is this: the righteous must rebuild. And rebuild we shall — on the sure, strong, and sacred foundation of the people’s will.
Let the rebirth begin.
