Nigeria has a very unique
constitutional arrangement. It incorporates several compromises designed to
suit the multi-ethnic and multi-religious nigerian state. However, we need to
reconsider the current constitution and assess its usefulness to the nigerian

Under Sections 4 and 5
of the Constitution, legislative powers are divided between the National
Assembly and the State Houses of Assembly. Matters under the exclusive list are
within the legislative purview of the National Assembly and matters under the
concurrent list can be legislated upon by both the National and State Houses of
Assembly. Matters not contained in either list are regarded as ‘residual
matters’ and any Act passed by the National Assembly in these ‘residual areas’
are inapplicable in states that have not incorporated them into domestic law.
These lists are largely similar to those contained under the 1979 constitution.
Different global, regional and domestic 
developments have necessitated the review of these lists. Some matters
need to be clearly outlined as belonging to either lists e.g human rights and
criminal justice. Other matters may.need to be divided between the federal and
state to ensure excess power is not concentrated in either of the legislative


Section 10 prohibits
the Nigerian Federation or any State from adopting any religion as state
religion. However, criminal legislation of certain states in Northern Nigeria remain
rooted in Islamic law. As a matter of fact, the Sharia Penal Code governs the
conduct of Muslims in about 12 Northern States with the state Penal Code
applicable to non-Muslims. Furthermore, Section 260 and 276 establishes Sharia
Courts of Appeal in the Federal Capital Territory and in states that ‘require
it’. These courts regulate matters relating to Islamic personal and criminal law.
No other religion in Nigeria enjoys such a great deal of constitutional
protection. This position itself violates the spirit of Section 10 and needs to
be reviewed.  The integrity of the
constitution as the Supreme law making instrument in Nigeria also depends to a
large extent on the representation of the constitution as treating all
Nigerians fairly and equally without discrimination on grounds of religious
belief or affiliation. This does not represent the current position of the
Nigerian Constitution.


Aside from the
fundamental rights granted to Nigerian citizens under Chapter IV of the
constitution, there are ‘fundamental objectives of government policy’ listed
under Chapter 2 for which the government has a duty to pursue. However Section
6(6c), in granting jurisdiction to the Courts, does not extend the jurisdiction
of the Courts to ‘
issue or question as to whether any act of omission by any authority or person
or as to whether any law or any judicial decision is in conformity with the
Fundamental Objectives and Directive Principles of State Policy set out in
Chapter II of this Constitution’. Chapter 2 covers the vast majority of
economic and social rights (right to work, right to education, right to health,
environmental rights etc). Under Chapter 2 (Section 17) for instance, the state
is to direct policy towards ensuring that ‘children, young persons and the age
are protected against any exploitation whatsoever, and against moral and
material neglect’. However, Section 6(6c) suggests that the Court’s
jurisdiction under the Constitution is not extended to matters that relate for
instance to actions being taken by the government to prevent children from
hazardous labour. It may even arguably imply that even if the government is
failing in this regard, the Courts do not have jurisdiction to make orders in
this regard against the government. Some scholars have argued that the constitution
can be interpreted otherwise but in any case, there is no reason why the
government of a country that seeks progress in matters relating to economic and
social rights such as the right to education or freedom from the worst forms of
child labour for instance should not be held accountable in this area. There is
no justification in my view for the duties listed under Chapter 2 to remain
mere ‘fundamental objectives of government policy’. They must be incorporated
as fundamental rights under Chapter IV which can be duly enforced in the Courts
without any procedural impediments, particularly such as is related to


Section 38 of the Constitution
provides for the right of Nigerians to hold opinions and impart information
without interference. However, Section 39 provides that laws which are
‘reasonably justifiable in a democratic society’ may be imposed to regulate
wireless broadcasting, television and cinematography. The question of what may
be ‘reasonably justifiable’ is presumably a question for interpretation by the
Courts. There is however no reason why the constitution cannot contain provisos
as to what may not be ‘reasonably justifiable’. Section 42 deals with
non-discrimination and further to Section 42(1), a person shall not be
subjected either expressly by, or in the practical application of, any law in
force in Nigeria or any executive or administrative action of the government,
to disabilities or restrictions to which other individuals are not subjected.
It must however be noted that the question of discrimination extends to matters
relating to unjustifiable differential treatment of other individuals on these
prohibited grounds. A person may not necessarily be subject to disabilities or
restrictions but can still be a victim of discrimination if others enjoy
privileges not available to the individual in circumstances which cannot be
justified. This is especially evident in matters relating to proprietary rights
under customary law. The definition of discrimination under Chapter IV is also
problematic and in need of review.


For an individual born outside
Nigeria to apply for citizenship under Section 28, such an individual must be
of Nigerian ancestry (grandparents being Nigeria) or a woman married to a
citizen of Nigeria, irrespective of their ancestry. This excludes non-Nigerian
men who are married to Nigerian citizens. There is no reason why such a
provision should exclude these category of people. Furthermore, Section 29(4)
deems a woman who is married ‘of full age’ for the purpose of renouncing
citizenship. In 2013, protests were held in different parts of the country with
respect to the effect of this provision, particularly in relation to the age of
marriage of women in the country. While Section 29(4) may not validate child
marriage as some scholars or activists opine, it remains a problematic
provisions which in reality serves little positive purpose as it currently



Ogunde is an research specialist and consultant with research interests in
human rights law, criminal law and constitutional law. He has a Master’s degree
in Human Rights Law from the University of Nottingham and a Bachelor’s degree
from the University of Sheffield. He is also a barrister and solicitor of the
Federal Republic of Nigeria, having been called to the Nigerian Bar in February