A Thesis Submitted for the Degree of PhD at the University of Warwick Permanent WRAP URL: http://wrap.warwick.ac.uk/108216/ Copyright and reuse: This thesis is made available online and is protected by original copyright. Please scroll down to view the document itself. Please refer to the repository record for this item for information to help you to cite it. Our policy information is available from the repository home page. For more information, please contact the WRAP Team at: [email protected] warwick.ac.uk/lib-publications The Law and Politics of Constitution Making in Nigeria. 1900-1989: issues, interests, and compromises. by Tahir Mamman Thesis submitted in Partial Fulfilment of the Requirement of the Degree of Doctor of Philosophy to the School of Law, University of Warwick June, 1991. ACKNOWLEDGEMENT. I wish to acknowledge the profound and considerable help received from my supervisor, Dr L. Lustgarten, whose efforts and care both for my academic work and welfare enhanced the timely completion of this project. His constructive criticisms have been of immense value to the study. I am also grateful to Y.P.Ghai under whose intellectual tutelage, the original idea for the thesis developed and Jill Cottrell whose encouragement, concern and assistance in reading some of the initial drafts, helped a great deal. I would like to express my utmost appreciation to Mohammed L. Buba (former registrar, University of Maiduguri) and Professor Mohammed Nur Alkali (the Vice Chancellor) whose untiring efforts, concessions and encouragement enabled me to embark on the PH.D programme in the first place. In the process of my research, some friends offered enormous material, moral and psychological assistance which indeed facilitated my work considerably. They are Musa B. Kamale, Major Buhari Aliyu, Alhaji Abdullahi Zira , Abba Murtalla, who offered hospitality in Lagos and others too many to write here. Furthermore, i wish to extend my appreciation to Mrs Abiodun 0. Majasan of the Specialized Political Library, The Presidency» Lagos, Mrs Stella Umar and her colleagues in the National Assembly Library who allowed me almost unbridled access to the resources of the libraries. My thanks goes to Bala Takaya of University of Jos for providing me with virtually all the materials i needed on the Political Bureau, Justice Buba Ardo, Chief Judge of Gongola State, who despite his tight schedules supplied and discussed with me a large proportion of the materials on the Constitution Review Committee and the Constituent Assembly, 1988-1989. Also, i wish *o acknowledge the untiring kindness and resourcefulness of M.P. Wright (the Secretary, Graduate Studies of the School of Law) who had to put up with all sorts of requests from me for almost four years and Wiebina Heesterman who was virtually op call to attend to my difficulties w* th word processing. Similarly, Kate Mulholland contributed significantly with her constant supply of secondary literature and advice. Finally, the entire work is dedicated to my two children, Rouqayya and Nafisah who during a substantial proportion of the period of the study were kept away from the comfort and security of their father. List of Abbreviations AG Action Group (Party) CA Constituent Assembly CC Chief Commissioner CDC Constitution Drafting Committee CRC Constitution Review Committee NCNC National Council of Nigeria and the Cameroons NPN National Party of Nigeria NPC Nigerian Peoples Congress OAG Officer Administering the Government (Nigeria) PB Political Bureau. iii TABLE OF CONTENTS Page no, Acknowledgements............................ I List of abbreviations ................. III Table of Contents ...................... IV Summary .. .. ...................... IX Chapter 1: Introduction and Theoretical Setting 1 l.A. The U.S.A. Consitution, 1787 5 l.A.l The U.S.S.R Constitutions 7 l.B Origins of Liberal Constitutions and Constitutionalism 10 l.C. Socialist Constitutions, Leadership and Mass Participation 15 l.D. options for a Constitutional Engineer.. 22 l.E Repertoire of Strategies .. 27 l.E.l Public Oriented Procedures 28 l.E.2 Private Oriented Procedure 34 l.F. Class and Cleavage Structure in Nigeria.. 36 l.F.l Dependency and Underdevelopment .. 39 l.G. The Pre-Colonial Formation 44 l.G.l The Northern region .. 44 l.G.2 The Southern Region 47 l.G.3 Other Minority Groups 52 l.H The Colonial Period, 1861-1951 53 l.H.l The Political Impact.. 54 l.H.2 Structure at the Economic Base 55 1.1 The Period 1951-1966 61 l.J Class Structure, 1966-1989 66 l.K Class Formation and Consolidation at the Economic Base 69 l.L. Fusion of Elites 75 iv CHAPTER 2: Background to Constitution Making, 1862 - 1^67 .. ..79 2.A. The Governors' Constitutions, 1862 - 1946 .. 81 2.A.I. Background to the Amalgamation of Nigeria 84 2.A.2 The Clifford Constitution, 1922 88 2.A.3 Background to the Richards' Constitution, 1946 .. .. 92 2.B The Macpherson Constitution, 1951s Change or Continuity? .. •• 101 2.B.1 Procedure of the Conferences .. 107 2.B.2 The Drafting Committee .. .. 112 * 2.B.3 The General Conference .. .. 114 2.C. European Commercial Interests .. 116 2.D. The Constitutional Process, 1954-1960 124 2.E. Economic Concessions Exacted in the Negotiations .. .. •• 128 2.F. Constitutional Attempts, 1960-1967 .. 132 CHAPTER 3s Introduction: The Third Phase of Constitutional Engineering, 1975-1989 138 3.A. The Constitution Drafting Committee, 1975-1976 145 3.A.1 Appointment and Composition 145 3.A.2 Terms of Reference and Procedure 148 3.B. National Goals, Development and Human Rights .. 153 3.B.1 Human Rights/Duties .. .. .. 158 3.B.3 National Integration and Federal Cha racter 161 3.B.4 The National Economy and Ideology .. .. 166 3.B.5 Discussions and Policy on Land 170 3. C. Structures of Government 173 CHAPTER 4: The Consituent Assembly, 1977-1 978 186 4. A. Composition and Economic Background 188 4.B. Terms of Reference and Procedure 191 4.B.1 The Draft and P^olic debate .. 195 4.C. Debate on the Principles: Major Issues and Cleavaoes .. 199 4.D. Issues and Cleavages in the Full Committee 207 4.E Promulgation of the Constitution 221 CHAPTER 5: The Political Bureau 223 5.A. Appointment and Composition 225 5.B. Agenda and Terms of Reference 226 5.C. Procedure and Conduct of the Debate 228 5.C.1 Constraints on and Limits of the Debate 231 5.D. Summary of Issues ana Government Response 234 5.E. Constitutional System and Structure of Government 242 5.F. Special Groups and Interests in the Political Economy 253 5.G. Special Issues 256 5.H. A New Philosophy of Government: Mass Mobilization and Official Accountability 259 CHAPTER 6: The Constitution Review Committee 266 6.A. Appointment and Socio-Economic Category 267 6.B. Terms of Reference and Procedure 267 6.B.1 Policies Explicitly Determined 269 6.C. Summary of Substantive Issues 274 6.D. Entrenching Institutions and Decrees 283 CHAPTER 7: The Constituent Assembly, 1988-1989 285 7.A. Establishment, Composition and Background of Members 285 7.B. Powers and Procedure 290 7.C. Issues and Cleavage Structure 298 7.C.1 State, Religion and Sharia Controversy ii 5 7.C.2 Welfare State and the 1989 Constitution 324 7.C.3 Military Intervention and the Constitution 328 V! 7.C.4 Party Structures 330 CONCLUSIONS • • 339 Bibliography 357 Appendices A brief Note on Methodology and Sources. vi i Abstract. This thesis is a study “of the constitution making processes in Nigeria from the colonial inception to the 1989 Constitution which is scheduled to usher in a putative third republic. Although apparently covering a wide scope, its boundary is limited by its perspective. Constitution making in any polity is essentially a political process where all the major, relevant and active interests seek to protect and advance themselves. Consequently, the focus of the research is on determining these competing interests, their interactions, compromises, winners and losers, etc. Attempts were made to provide the criteria for class identification in Nigeria to serve as a guide for determining class based action. The value of the work is threefold. First, it makes a modest but important contribution to an ongoing debate on whether or not Nigeria's post independence constitutional processes in particular were grounded in class interest, in the tradition of Charles Beard's interpretation of the constitution of the U.S.A. Second, it disputes and in large measure seeks to contradict some of the earlier widely held assumptions and assertions regarding the making of some of the constitutions, especially the Macpherson Constitution, 1951.Finally, it attempts to provide a complete and realistic account of the constitutional evolution of Nigeria less the military rule, from its inception as a country up to 1989. The method of investigation was largely analytical using official records, official reports, communications of key officials, biographical data, etc. Theoretical guidance was significantly drawn from political economy writings in politics, history and law. Eventually, the analysis revealed the existence and interplay of important interest configurations, reducing class to a subtle rather than an obvious phenomenon in the constitutional process. But overwhelmingly, the entire process was elitist and self serving with the mainstream of the population left in the margin in the composition of the constitutional bodies, the setting of agenda and the institutions and mechanisms established for governing the country. Finally, it found that there was a great deal of continuity of the values and institutions established for colonial ends with little or no will manifested in the constitutional process to break with the past. Rather what transpired was an expansion of institutions and creation of formulae in the constitution to accommodate a new breed of elites who were able to manipulate potential cleavages in the society to serve personal ends.