A STEP-BY-STEP PROCESS OF

AMENDING THE NIGERIAN

CONSTITUTION

A Step-by-Step Process of Amending the Nigerian Constitution i

 Published by:

Policy and Legal Advocacy Centre (PLAC)

Plot 451 Gambo Jimeta Crescent off
Nasir El-Rufai Crescent,
Guzape District, Abuja,
Nigeria

With Support from:

First published 2014

Reprinted 2019

ii A Step-by-Step Process of Amending the Nigerian Constitution

 ACKNOWLEDGEMENT

PLAC wishes to acknowledge the support of the

British Department for International Development
(DFID) in the publication of this guide.

A Step-by-Step Process of Amending the Nigerian Constitution iii

 TABLE OF CONTENTS

1. Introduction 1

2. Changes to the Text of the Constitution 4

3. Required Legislative Process in Nigeria 5

4. Steps in Amending the Constitution 6

5. Stakeholders in Constitutional Amendment 11

6. Recommendations 17

7. Conclusion 19

iv A Step-by-Step Process of Amending the Nigerian Constitution

1. INTRODUCTION

A Constitution is the set of fundamental principles or established

precedent according to which a State is governed. In other
words, it is the organic and fundamental law that establishes
the character and conception of government, its basic principles
and the extent and manner of its sovereign powers.1

A constitution amendment is a formal change to the text of the

written Constitution of a nation or state. In some jurisdictions,
the text of the Constitution itself is altered; in others, the text is
not changed, but the amendment changes its effect.

A Constitution may be written or unwritten and rigid or flexible

depending on the nature of its amendment. Where it is written,
the rules that govern its political system and the rights of citizens
are contained in a single document but when it is unwritten, the
fundamental rules of government can be found in its customs,
usage, precedents, statutes and legal instruments rather than in
a single codified document.

In addition, written Constitutions often have a rigid amendment

process and special procedure for enacting, repealing or
amending any giving law in comparison to unwritten Constitutions
that adopt a more flexible process that allows the Legislature
to amend laws in their Constitution by a simple or ordinary law
making process.

However, most Constitutions require an amendment procedure

that is more stringent than that required of ordinary legislation.
Examples of such special procedures include passage by super-
majorities in the legislature, direct approval by the electorate in

1
What is Constitution? Definition of Constitution?. Available at https://thelawdictionary.org/constitution/

A Step-by-Step Process of Amending the Nigerian Constitution 1

 a referendum and even a combination of two or more different
special procedures. In some jurisdictions, a referendum to
amend the Constitution may be triggered by popular initiative.
In Nigeria, for instance, some interests and advocacy groups had
called for a referendum to endorse the constitution amendment
process. This position has continuously been rejected by the
National Assembly on the premise that the 1999 constitution
does not provide for referendum.

In Nigeria, the authority to amend the Constitution is derived

from section 9 of the 1999 Nigerian Constitution, which provides
that an amendment may be proposed with a two-thirds majority
vote in both the Senate and the House of Representatives
respectively and subsequently approved by a resolution of the
Houses of Assembly of not less than two-thirds of all the States.

Going by its features of a Federal structure of government,

Presidential system of government and a rigorous amendment
process respectively, the 1999 Constitution of Federal Republic
of Nigeria appears to have been inspired by the United States
model. Article V of the United States Constitution clearly states
the procedure for amending the US Constitution as well as its
ratification. It requires a two-third vote of members of the Senate
and House of Representatives proposing such an amendment
followed by a ratification of three-fourths of the various State
Legislatures. Alternatively, two-thirds of the State Legislatures
can call a constitutional Convention for such purpose which
could be followed by a ratification of proposed amendments
from the Convention by three-fourths of the State Legislatures.

In Nigeria, both sections 9 (2) and (3) clearly outline the

procedure for amending provisions of the Constitution. However,
while Section 9(2) requires the votes of two-thirds of members
of both houses of the National Assembly and approval by a

2 A Step-by-Step Process of Amending the Nigerian Constitution

resolution of two-thirds of the States Houses of Assembly to
make amendments to the Constitution, section 9(3) imposes a
higher requirement of a four - fifth majority by both chambers
of the National Assembly and approval by a resolution of two-
thirds of the States Houses of Assembly where the amendments
deals with the creation of new states, boundary adjustments,
new local government areas, fundamental rights or the mode
for altering the Constitution.
Proposals for Constitutional amendments in line with Sections
9(2) and (3) are usually carried out through the use of electronic
voting at plenary to properly record the votes cast and avoid
situations where the voice vote option could be used by
Parliamentarians, propelled by promptings of a group of power
brokers to change the provisions of the Constitution to suit
personal interests.

While the need for Presidential assent to endorse the

Constitutional amendment process has been debated in recent
times, the two-fold procedure for proposal and ratification
conveys the seriousness of a document from which all laws in
Nigeria derive their validity from and which is described as the
“grundnorm” of the land.

A Step-by-Step Process of Amending the Nigerian Constitution 3

2. CHANGES TO THE TEXT OF THE CONSTITUTION

There are a number of formal differences, from one jurisdiction to

another, in the manner in which constitutional amendments are
both originally drafted and written down once they become law.
In some jurisdictions like Nigeria, Republic of Ireland, Estonia
and Australia, constitutional amendments originate as bills and
become laws in the form of Acts of Parliament. There are however
slight differences on further procedures required to bring such
Acts or amendments into force. For example, in the Republic of
Ireland and Australia, although amendments are drafted in the
form of Acts of Parliament, they cannot become law until they
have been approved in a referendum. In some other jurisdictions
proposed constitution amendments do not originate as bills e.g.
in the United States, a proposed amendment originates as a
special joint resolution of Congress, which is not submitted to
the President for his assent.

Constitution amendments are usually recorded in two main

forms. That is either in the form of revisions to the previous text
or by appending amendments at the end of the main text in the
form of special sections of amendment while leaving the body
of the original text intact.

Where an amendment is recorded by revision to a previous text,

portions of the original text may be deleted or new sections
inserted among existing ones once the amendment becomes
law.

However, where the second and less common method of

appendage to the end of the main text is used ,the doctrine of
implied repeal will apply. In other words, in the event of conflict,
a section of amendment will usually take precedence over the

4 A Step-by-Step Process of Amending the Nigerian Constitution

provisions of the original text, or of an earlier amendment.
In Nigeria, the Law Reform Commission is responsible for the
codification of all laws, including Constitution amendments.

A Step-by-Step Process of Amending the Nigerian Constitution 5

3. REQUIRED LEGISLATIVE PROCESS IN NIGERIA

1st Reading 2nd Reading Public Hearing

and Referral

Harmonisation of
3 Reading
rd Bill between Senate Transmission to State
and House of Houses of Assembly
and passage
Representatives
(as needed)

Adoption of report
from the State
Houses
of Assembly

Section 9 of the Constitution states that the National Assembly

can only pass an Act to amend the Constitution when its proposal
is supported by two-thirds majority of all the members of each
chambers (i.e. 72 Senators and 240 Members) and approved
by the resolution of at least two-thirds of the State Houses of
Assembly ( i.e. 24 States).

6 A Step-by-Step Process of Amending the Nigerian Constitution

4. STEPS IN AMENDING THE CONSTITUTION
a. Proposals for amendment to the Constitution usually
come in the way of Bills. Bills originate either from the
Executive or a Member of the National Assembly as a
Private Member Bill. While Executive Bills are initiated
by the President, the Chief Justice of Nigeria or other
Government officials, Private Member’s Bills are initiated
by interest groups and sponsored by members of either
the Senate or the House of Representatives.

The Bill‘s presentation is preceded by its receipt by

the President of the Senate or Speaker of the House
of Representatives as the case may be and sent to
their respective Rules and Business Committees for
scheduling on the Order Papers for an introduction into
the Houses. At its presentation, the long title is read out
for first reading marking the beginning of the legislative
process. It is important to note that the Bill goes through
the same procedure in each chamber of the National
Assembly.

b. Usually, a Bill is read for a second time and its general

principles debated during plenary, after which it is referred
to a Committee that has been specifically assigned
within the lifespan of the Assembly to critically examine
and legislate over constitution amendment issues. In the
National Assembly’s case, this duty is usually performed
by the Committee on the Review of the Constitution in
the Senate or House of Representatives Bills – usually
an ad-hoc Committee that is specifically assigned to
critically review and make legislative input on constitution
amendment proposals referred to it.

A Step-by-Step Process of Amending the Nigerian Constitution 7

 c. The Committee reviews the Bill and may organise a public
hearing and other consultations on the bill. At this stage,
Bills are not only critically examined by the Committee
but by identified stakeholders of the public who are often
required to make written submissions of their view through
a Memorandum to propose further amendments where
necessary. The Committee is at liberty to develop new
amendment proposals based on received submissions
and outside of those committed to it.

d. The amendment proposals are presented as one

Constitution Amendment Bill or as several Bills touching
on different subject matters in a report to plenary. The 8th
Assembly for instance, adopted a piece meal approach
where constitutional amendment proposals were brought
as separate bills rather than a single Constitutional
Amendment Bill. This was done to avoid the 7th
Assembly’s experience with presenting multiple proposals
in a single amendment bill, which were all jettisoned when
the President refused to sign the bill. If the report and
bill(s) as presented is adopted at this stage, it progresses
to Third Reading.

e. Before the Bill progresses to Third Reading, every member

of the legislature votes either in support or against
each specific item in the Bill. Here, the proposals to the
Constitution are often presented in the form of a clause.
A two third majority of all the members of each House is
needed for each clause to be deemed as passed except
where the proposal borders on the creation of new states,
boundary adjustments, new local government areas,
fundamental rights and on the mode for altering the
Constitution. In such cases, a four-fifth majority is needed.

8 A Step-by-Step Process of Amending the Nigerian Constitution

f. The Votes are then collated and counted, usually after
electronic voting. The reason for this is two fold. Firstly, it
is to ensure that the total number of Senators or House
of Representatives Members in attendance are not below
the minimum number required to pass a proposed clause.
Secondly, this is to ensure that any proposal that is passed
meets the stipulated requirement of an approval by a
two-third majority.

g. Once two-thirds of the total number of Senators or

Members voting in each chamber is achieved in any of
the proposals of the Committee, the process moves to
the next stage.

h. If an amendment occurs at either of the Houses on the

bill or each House passes the bill with differences, a
Conference Committee will be set up to harmonise the
differences. This is because the two chambers are required
to pass every bill, including constitution amendment bills
in identical format.

i. If both Houses are not able to harmonise positions, the

Bill will be returned to the respective chambers of the
National Assembly for fresh voting. Two-thirds of the
numerical strength of each House will still be required
to pass it at this stage. This would mean a minimum of
seventy-two Senators and two hundred and forty Members
of the House adopting an identical bill for transmission to
the States.

j. Where the bill is however adopted or passed in identical

format by the two chambers i.e. without amendments,
there would be no need for a conference or harmonization

A Step-by-Step Process of Amending the Nigerian Constitution 9

 as described above as it is deemed that they have passed
a single uniform bill.

k. The bill is then transmitted to the State Houses of

Assembly by the Clerk of the National Assembly for their
concurrence.

l. A simple majority vote of members in 24 States will be

required for each amendment to be approved. This is
usually in the form of a YES or NO vote. Note: In practice,
State Assemblies have been known to “step down” or
“defer” a bill they are unable to decide on instead of
voting “No.” This still does not translate to a “Yes” vote.

m. When two-thirds of the States approve each clause by

simple majority, returns are then made to the National
Assembly after which it is adopted (usually in a ceremony)
by the National Assembly before its transmittal to the
President for assent. The Clerk of the National Assembly
is expected to attach the Votes and Proceedings of the
National Assembly and the State Houses of Assembly
to show that the amendments meet the constitutional
requirement for passage.

Note that some legislative experts argue that once
the States approve the amendments, they should
automatically come into effect as the Constitution
does not expressly prescribe the requirement of the
President’s Assent for constitution amendment bills.
Further, that in a Federal system, when the States have
ratified an amendment, it should be seen as the final
and authoritative will of the people. This is the system
adopted by the U.S. where the President has no formal
role in constitution amendment. Others argue that

10 A Step-by-Step Process of Amending the Nigerian Constitution

 the bill should obtain the President’s Assent as Acts of
Parliament require Presidential assent (see section 58 of
the Constitution) and is a way of reinforcing checks and
balances between the two government arms.

n. If the process is defeated at any stage, it will end any

further step and will have to start afresh.

o. The end of Assembly of every legislative house breaks

the cycle of the amendment process. Therefore, the
Constitution amendment process cannot go beyond
the fixed period stipulated for any given Assembly
nor deliberations on the amendments continue at the
convening of a new Assembly.

Note however, that recent Rules of the House of

Representatives [Order XIII, Rule 1 (11)] now allow for
constitution amendment bills not concluded in a previous
Assembly to be taken up by a new Assembly. This was seen
in the 7th and 8th Assemblies where the latter continued
and concluded work on some constitution alteration bills
began by the former but vetoed by the President. This
provision however goes more to the issues and does
not dispense with certain procedural requirements. For
instance, the bill will still have to be reintroduced and
made to go through the legislative stages or readings.
The benefit of the rule is that the same issues can be
brought back on table. Those considered settled can be
prioritised and accelerated while certain procedures like
a public hearing may be dispensed with except there are
new issues or provisions introduced in the bill that require
further consultations.

A Step-by-Step Process of Amending the Nigerian Constitution 11

 5. STAKEHOLDERS IN CONSTITUTIONAL
AMENDMENT

5.1 Executive

In Nigeria, the Executive may propose a Bill seeking to

amend the constitution and send it to the Legislature for
consideration.

The Executive Arm of Government may also set up a

Committee of its nominees to pursue the objective of
amending the Constitution. The Committee will be
expected to submit its report after conducting public
hearings and other activities to make the process an all-
inclusive exercise. From the inputs gathered at the public
hearings, the Executive will articulate all the views and
suggestions on Constitution amendment in bills form
and transmit them to the National Assembly to avail
the Legislature ample time do a proper job. In October
2016 for example, the Federal Government set up a 25-
man Committee that was inaugurated by the Attorney
General and Minister of Justice, Abubakar Salami (SAN)
to suggest Constitution and Electoral reforms to improve
the electoral process.

“Controversy over Presidential Assent: A decision of

the Federal High Court in Olisa Agbakoba Vs National
Assembly”

In practice, the President must assent to a constitution

amendment bill before it becomes law in spite of the
fact that Section 9 of the Constitution, which deals with
amendments to the Constitution itself, does not expressly

12 A Step-by-Step Process of Amending the Nigerian Constitution

state that the President’s assent is required.
Prominent legal scholars in Nigeria have written divergent
opinions on whether the President’s assent is required in
the constitutional amendment process; with particular
mention of the opinions of Chief Richard Akinjide, SAN,
Professor Taiwo Osipitan, SAN, Mr. Olisa Agbakoba,
SAN and even the Nigerian Bar Association who have
argued that the proposal for the alteration of the 1999
Constitution as passed by the National Assembly and
approved by more than two-thirds majority of the State
Houses of Assembly cannot take effect as amendments
to the 1999 Constitution in the absence of the assent of
the President.

However, those who hold contrary views maintain that the

President whose functions are well articulated in Part II,
Section 5(1)(a) and (b) of the 1999 Constitution has no
formal Constitutional role in the amendment process as
stipulated by Section 9 of the Constitution.

In 2010, the National Assembly carried out amendments

to the Nigerian Constitution. The question then arose
as to whether the amendments could become valid
without the President giving his assent to it. To follow
up the question and public discourse on the matter,
former President of the Nigerian Bar Association (NBA),
Olisa Agbakoba, sued to force the National Assembly to
present the amended Constitution to the President for
his assent. On November 8, 2010, a Federal High Court
in Lagos presided over by Justice Okechukwu Okeke
declared in the Olisa Agbakoba case, that an amended
Constitution is invalid without the President's signature.
Consequently, the National Assembly took the amended
Constitution to the President who then assented to it.

A Step-by-Step Process of Amending the Nigerian Constitution 13

 Experts however argue that the National Assembly should
have pursued an appeal of the Lagos Federal High Court
decision and gotten the Supreme Court to interpret the
position of the Constitution on the matter. The 7th and
8th Assemblies, have sought to amend section 9(2) of the
Constitution to dispense with the assent of the President.
However, this amendment which implies that the President
has to cut back on his powers has been vetoed by former
President Goodluck Jonathan and incumbent President
Muhammadu Buhari.
Be that as it may, some still argue that the President can
neither veto an amendment proposal by the National
Assembly nor the approval of two-thirds majority of the
Houses of Assembly. They further argue that since there
is no ambiguity in the provisions of section 9 of the 1999
Constitution; there is no need to refer to Section 58 (which
requires Presidential assent for the passage of ordinary
legislation) as it is inapplicable anyway. According to the
proponents of this view, Section 9 is sacrosanct and cannot
be departed from, varied or added to by the proponents
of Presidential assent.

5.2 Judiciary

The second major way the meaning of the Constitution

changes is through the judiciary. As the ultimate arbiter of
how the Constitution is interpreted, the judiciary wields
more actual power than the Constitution alludes to. The
complex role of the Supreme Court in constitutional
amendment derives from its authority to invalidate
legislation or executive actions, which, in the Court's
considered judgment, conflict with the Constitution.
This power of "judicial review", though not explicitly
provided in the Constitution, has given the Court a
crucial responsibility in assuring individual rights, as well

14 A Step-by-Step Process of Amending the Nigerian Constitution

 as in maintaining a "living Constitution" whose broad
provisions are continually applied to complicated new
situations.

5.3 Legislature

One of the major functions of the Legislature is to enact

laws, which includes altering provisions of any law or the
Constitution. Further, members of the Legislature have
the power to sponsor bills emanating from public or
interest groups that propose constitution amendments.
In the 7th Assembly, the House of Representatives under
the Leadership of the then Speaker of the House, Rt.
Hon. Aminu Waziri Tambuwal, CFR, issued a Legislative
Agenda, which encapsulated the policy direction of the
House. The Legislative Agenda, in Principle 5, identified
further amendments to the Nigerian Constitution, as a
key objective to be pursued in line with the aspirations
of Nigerians. The 8th National Assembly also followed
suit highlighting Constitutional Reforms as one of its key
priorities in both chambers.

5.3.1 Constitution Review Committees

In the National Assembly, the Ad Hoc Committees on the

Review of the Constitution is usually led by the Deputy
Senate President and Deputy Speaker of the House as
Chair in the respective chambers. Membership of the
Committee typically includes the Principal Officers of
each chamber and in the House, the convention is that
one member from each State of the Federation and the
Federal Capital Territory (FCT), Abuja are nominated to
the committee. To facilitate the committee’s work, external

A Step-by-Step Process of Amending the Nigerian Constitution 15

 Technical Experts on constitutional and legal matters are
usually commissioned to assist it with developing its work
plan, reviewing memoranda and making technical inputs
to the bill.

5.3.2 Referral of Bills to the Committee

Often times, Constitution amendment bills come in several

separate documents. Such bills would be made to go
through the normal bill stages, however, when they have
been read a second time and a debate on their general
principles done, the chamber in question entertaining the
bill usually refers it to the Constitution Review Committee
for further legislative action. The Committee is mandated
to consider those Bills that are referred to it after they
have been read for the second time. The Committee’s
duty is to report back to the plenary on clauses of the
bill that they recommend for adoption and those that
they think should be excluded. It is important to note
that in practice, where there are several bills seeking to
amend a particular legislation or different constitutional
provisions, the bills can be consolidated and taken as
one. In the 7th and 8th National Assembly’s Constitution
Review process, several bills, including those sponsored
by legislators, were proposed to the National Assembly
and considered by the Constitution Review Committees
of both chambers.

5.3.3 Voting Pattern

The voting procedure in dealing with amendments

includes each chamber considering clause by clause,
the Report laid by the ad-hoc Constitution Review

16 A Step-by-Step Process of Amending the Nigerian Constitution

 Committees and voting on each clause. Voting is usually
via electronic device to determine how members voted
on the various clauses in the Constitution Review Report
and to determine if the constitutional requirement for
supporting proposing amendments was achieved.

5.4 Citizens / Interest Groups

The general public/interest groups play a pivotal role

in Constitutional review through engagement with the
process. In the past, the Legislature has embarked on
zonal hearings on Constitution review in the six geo-
political zones to ensure public enlightenment and
receive input on proposals. Citizens/Interest groups
may also be called upon to give feedback in public
hearings after a constitution amendment proposal
passes second reading. In the 7th Assembly, the House
of Representatives circulated a 43-item questionnaire to
constituents that was used to develop its amendment
proposals.

5.5 The Media

The Media plays an important role in shaping and guiding

discourse on Constitution review and explaining how it
affects citizens. This platform could generate healthy
debate around constitution amendments, enable the
legislature to be acquiesced of citizen preferences and
increase political participation in a manner that deepens
democracy.

A Step-by-Step Process of Amending the Nigerian Constitution 17

6. RECOMMENDATIONS

Constitution amendment is a necessity in democracies worldwide

to enable the society responds to changing social, political and
economic needs and realities. It is also important for addressing
gaps and inadequacies, promoting rights and protecting minority
or special interest groups. However, it is important the process
is a rigorous, transparent and inclusive one so as to prevent and
protect the society from politically motivated or selfish interests
and even unnecessary changes with no long term purpose.

Constitution review in other democracies has taken a pattern

where political leaders, interest groups, civil society groups and
state actors hold consultations on key areas of review through a
people driven process as the Constitution is ultimately owned
by the citizens.

In Nigeria, successive efforts have been made by the 4th, 5th,

6th 7th and 8th Assembly to alter different sections of the
Constitution. While the 6th Assembly enacted the 1st, 2nd
and 3rd Alteration Acts, the 4th Alteration Act was successfully
carried out by the 8th Assembly who adopted a piecemeal
approach of sending separate Bills to the President for assent.
The 8th Assembly had adopted this approach following the
7th Assembly’s failure to secure assent from the then President
Goodluck Jonathan even after its proposals were passed at the
National Assembly and adopted by States.

That notwithstanding, the failure to pass critical bills desiring

more devolution of powers from the Federal Government to
States, local government autonomy, early budget presentation
and other socio-economic issues has increased agitations for
restructuring and a sovereign constitutional conference.

18 A Step-by-Step Process of Amending the Nigerian Constitution

Therefore, future amendments may need to concentrate on
critical areas of the polity such as:

• Devolution of powers
• Local government autonomy
• Indigeneship/citizenship rights
• Socio economic rights such as Health, Education,Housing,
• Security
• Agriculture
• Resource control
• Infrastructure
• Gender inclusion and minority rights

While some are of the view that the present Constitution review
process in Nigeria has been hampered by a lack of awareness
by the average citizen on the nature and contents of the Bill;
this deficit merely highlights the importance of collaboration by
all stakeholders, in ensuring that the process of engagement is
as inclusive as possible. The media in particular play a large role
in educating, informing and disseminating as much as possible,
the contents of proposed Constitution amendments.

A Step-by-Step Process of Amending the Nigerian Constitution 19

 7. CONCLUSION

Legal jurisdictions of the world have different processes or

procedures for altering their Constitution or grundnorm. The
Nigerian process requires careful and methodical fulfillment
of conditions laid out in the Constitution as outlined in this
publication.

A major challenge however has been how to keep track of

successful amendments. At this time, Nigeria has had four
successful amendments to the Constitution numbered 1,2,3,
and 4. These amendments, in their different numbers may not
always be readily available at the same time or place thereby
leading to confusion.

Also, while the 8th Assembly has been able to pass some
amendments, the agitations following the failure of passage of
critical bills that sought to increase the devolution of powers
from the Federal government to States, strengthen local
government autonomy and enhance the political participation
of women emphasise the need for innovative and creative
strategies to curb agitatations for secession and/or a Sovereign
National or Constitutional Conference.

This strategy should aim to deliver a new Constitution in one

single document that would be readily and easily accessible
to all Nigerians and handy for judges, legal practitioners and
citizens. It must also seek to plug legal loopholes in the existing
document and address current concerns. This will encourage
ownership, acceptance and consolidate the unity of the Nigerian
people.

20 A Step-by-Step Process of Amending the Nigerian Constitution

 ABOUT PLAC
Policy and Legal Advocacy Centre is a non-
governmental organisation committed to
strengthening democratic governance and citizens'
participation in Nigeria. PLAC works to enhance
citizens'engagement with state institutions, and to
promote transparency and accountability in policy and
decision-making processes. Since its establishment,
PLAC has grown into a leading institution with
capacity to deliver cutting-edge research, policy
analysis and advocacy. PLAC receives funding from
philanthropic sources.