Introduction
For over 25 years, Nigerians have agitated for a new people’s Constitution. The central legal question is: Must the people wait for the National Assembly to amend Section 9, before they can decide to replace the entire Constitution?
This Opinion argues that the answer is *No*. The National Assembly can, under its existing powers in Section 4 and Item 60(a), enact a law to conduct a Mandate Referendum that operationalises Section 14(2)(a). This is even becoming more necessary, considering the sheer spate of constitutional amendments we keep having to make to our existing Constitution. It’s clear that the Constitution is no longer fit for purpose, and ideally should be jettisoned and replaced with a more acceptable and workable document that reflects modern day Nigeria.
Issues for Determination
1. Whether sovereignty truly resides with the people under Section 14(2)(a), and what legal effect that has.
2. Whether Section 9 is the exclusive procedure for all changes to the Constitution.
3. Whether the National Assembly has power under Item 60(a), to establish machinery for a referendum on replacement.
4. Whether such a law would be inconsistent with the 1999 Constitution.
Argument
Issue 1: Sovereignty Belongs to the People – Section 14(2)(a)
Section 14(2)(a) provides: “sovereignty belongs to the people of Nigeria, from whom government through this Constitution derives all its powers and authority”.
This is not decorative. It is foundational.
In constitutional theory, there are 2 powers:
1. Constituent Power: The original power of the people to make and unmake a Constitution. It is unlimited.
2. Constituted Power: Power created and limited by the Constitution. This is the power of the National Assembly, the Executive and the Judiciary.
Section 9 governs constituted power. Section 14(2)(a) recognises constituent power.
To hold that the people can never replace the Constitution, would render Section 14(2)(a) a nullity. The Supreme Court has held that no provision of the Constitution should be interpreted to be in vain. See A-G Abia State v A-G Federation 6 N.W.L.R. Pt. 763.
Issue 2: Section 9 is not Exclusive for all Changes
Section 9(1)-(3) sets out how to alter “provisions of this Constitution”. Key words: “alter” and “this Constitution”.
It presupposes the continued existence of the 1999 Constitution. It is a maintenance procedure.
It does not, and cannot, regulate the making of an entirely new Constitution. That would be like asking tenants to use the landlord’s rules for painting the house, in order to demolish the house.
International precedent: South Africa 1996, Kenya 2010. Both used Constituent Assemblies, outside their amendment clauses.
Issue 3: The Power to Enact a Mandate Referendum Law – Item 60(a)
Item 60(a), Part I, Second Schedule: – The establishment and regulation of authorities for the Federation or any part thereof… to promote and enforce the observance of the provisions of this Constitution”.
If sovereignty belongs to the people, then the most important “provision” to enforce is Section 14(2)(a) itself.
The National Assembly therefore, has power to establish a “National Referendum Commission”, as the authority to ascertain the will of the sovereign.
Section 4(2) gives the National Assembly power to make laws for the peace, order and good government of Nigeria. Determining whether the grundnorm itself still enjoys popular legitimacy, is the highest act of “good government”.
Issue 4: No Inconsistency
An Act passed under Item 60(a), does not amend Section 9. It operates in a different sphere. It asks a prior question: Do we want to use Section 9 at all, or start afresh?”
The Supreme Court in Attorney-General of Bendel State v Attorney-General of the Federation 10 SC 1 held that the Constitution must be read as a whole. Reading Section 9 to exclude Section 14(2)(a), would create conflict within the Constitution. The harmonious interpretation is: Section 9 – amendment. Section 14(2)(a) and Item 60(a) – replacement.
Proposed Safeguards to Make the Law Court-Proof
To avoid abuse, the Mandate Referendum Act should contain:
1. Federal Character Pass Mark: Simple majority + 25% in 24 States. Mirrors Section 9.
2. Two-Stage Process: Mandate Referendum first. Ratification Referendum on the actual draft second.
3. INEC as Conductor: Uses existing structure under Electoral Act 2022.
Conclusion
The National Assembly is not “bypassing” the Constitution. It is fulfilling it.
To deny the people a vote on whether to keep or replace the 1999 Constitution, is to deny Section 14(2)(a).
We therefore, advise that the National Assembly can validly pass the Constitutional Replacement Mandate Referendum Act, 2026/27 under Section 4 and Item 60(a). Upon passage and Presidential Assent, INEC can conduct the referendum within 120 days. Ideally this would have saved costs if we could have merged it with next years general elections nationwide, but time constraints suggest this may now be difficult. It should however, be central to President Bola Ahmed Tinubu’s second term agenda, if granted a second term, and a second referendum ratifying a new draft Constitution can take place alongside the 2031 general elections
If the mandate referendum is ever challenged, I urge the courts to uphold it as the most faithful implementation of popular sovereignty, after all, the 1999 Constitution cannot be seen to be more sovereign than the people themselves.
