Constitutional Provisions for State-Creation under the Constitution 

Constitutional Provisions for State-Creation under the Constitution 

Constitutional Provisions for State-Creation under the 1979 Constitution:

The 1979 Constitution was the supreme legislative instrument that ushered in Nigeria’s 2nd republic which featured the introduction of the presidential system of government, and the emergence of Mr. Shehu Shagari as the president of Nigeria. The now defunct 1979 constitution adumbrates the procedure for creation of states and adjustment of boundaries under Section 8 of the 1979 constitution. This section provides thus:

‘(1) An Act of the National Assembly for the purpose of creating a new State shall only be passed if – (a) a request, supported by at least two-thirds majority of members (representing, the area demanding the creation of the new state) in each of the following, namely – (i) the Senate and House of Representatives, (ii) the House of Assembly in respect of the area, and (iii) the local government councils in respect of the, is received by the National Assembly; (b) a proposal for the creation of the State is thereafter approved in a referendum by at least two-thirds majority of the people of the area where the demand for the creation of State originated; (c) the results of the referendum is then approved by a simple majority of all the States of the Federation supported by a simple majority of members of the Houses of Assembly; and (d) the proposal is approved by a resolution approved by two-thirds majority of members of each House of the National Assembly.’

An examination of the above provision would reveal that this provision is substantially akin to the provisions for creation of State under the 1999 constitution – which has been scathingly criticised for the complex procedure which characterises State-creation.

Constitutional Provisions for State Creation Under the Aborted 1989 Constitution

The aborted 1989 Constitution was the idea of the federal military government under the administration of Gen. Ibrahim Babangida in line with the recommendation of the Constitution Review Committee. The provision which touches upon State creation under this Constitution is Section 9. Fore avoidance of doubt, this section is imparimateria with the provision of Section 8 of the 1979 Constitution cited above. Therefore, the problems are the same with those of the 1999 Constitution which will be discussed in this article.

State Creation under the 1999 Constitution

Not too long ago, the Nigerian media was awash with news of the recommendation of the Nigerian Senate Constitution Review Committee’s recommendation for the creation of 20 new states. Nevertheless, this Committee has promptly debunked the widely circulating news that it recommended the creation of new States, insisting that it has no such mandate except there is compliance with the provisions of Section 8 of the 1999 Constitution.

As far as Nigeria is concerned, State creation is a process that must completely fulfil constitutional requirements to occur. Therefore, this article explains the constitutional requirements for State creation under the 1999 Constitution.

Constitutional Provisions for State Creation in Nigeria

The relevant provision for State creation in Nigeria is the provision of Section 8 of the 1999Constitution which provides in part thus:

‘(1) An Act of the National Assembly for the purpose of creating a new State shall only be passed if –

  • a request, supported by at least two-thirds majority of members (representing the area demanding the creation of the new State) in each of the following, namely – (i) The Senate and the House of Representatives, (ii) the House of Assembly in respect of the area, and (iii) the local government councils in respect of the area, is received by the National Assembly;

(b) a proposal for the creation of the State is thereafter approved in a referendum by at least two-thirds majority of the people of the area where the demand for creation of the State originated;

(c) the result of the referendum is then approved by a simple majority of all the States of the Federation supported by a simple majority of members of the Houses of Assembly; and

(d) the proposal is approved by a resolution passed by two-thirds majority of members

of each House of the National Assembly.’

Constitutional Requirement for State Creation in Nigeria (Three R’s)

An analysis of the foregoing provisions would reveal there are essentially three major requirements for the creation of new States in Nigeria, viz. (a) the Request Requirement; (b) the Referendum Requirement, and; (c) the Resolution Requirement. These requirements are known in this research as the three ‘R’s and shall be examined in quick succession hereunder.

The Request Requirement:

As stipulated by the provisions of Section 8 of the 1999 Constitution, for the process of State creation in Nigeria to be kick started, there must first be a request for such. Note that such request can only be made by the representatives of the area for which a new State is being requested.

In other words, by the provisions of Section 8(a) of the Constitution, persons and stakeholders desirous of a new State must convey such desire to their constitutional representatives, who would in turn forward their request to the National Assembly.

For the purpose of this requirement, there are three classes of representatives who make such request. First, are the members of the Senate and House of Representatives representing such area in the National Assembly. Consequently, for any request to be made to the National Assembly for creation of new States, two-third majority of the members of the Senate and House of Representatives representing such area must support such request for creation of a new state.

Second, two-third majority of the members of the House of Assembly of such area must also support the request for creation of new States. Finally, two-third majority of the local government councils of such area must support the request for creation of such new State.

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The Referendum Requirement

  • Referendum refers to an occasion when all the people of a country can vote on an important issue. It is also a direct vote in which an entire electorate is asked to answer a question on a particular proposal.
  • Although referendum and plebiscite are often used interchangeably, they do not mean the same thing. The major difference is the political clime in which they are conducted. While plebiscite is a negative term referring to an unfair and unfree vote in an undemocratic political system, a referendum is a free, fair, and competitive vote.
  • Therefore, while the results of a plebiscite do not bind an undemocratic government, the results of a referendum are often binding on a democratic government. Our focus here however, is on referendum.
  • Arising from the provisions of Section 8(b) of the 1999 Constitution, following the receipt of the request for State creation supported by two-third majority of the representatives of the area in question, the proposal for the creation of new States is approved in a referendum by at least two thirds majority of the people of the area where the demand for creation of such State originated. The Independent National Electoral Commission is endued with the power to conduct such referendum by the provisions of Section 153 (f) of the 1999 Constitution and Section 2(c) of the Electoral Act of 2010.

Specifically, Section 153(f) provides as follows:

  • ‘The Commission (Independent National Electoral Commission) shall have power to – (i) carry out such functions as may be conferred upon it by an Act of the National Assembly’.

In pursuant of the above provisions, Section 2(b) of the Electoral Act provides that:

In addition to the functions conferred on it by the Constitution, the Commission shall have the power to – (c) conduct any referendum required to be conducted pursuant to the provisions of the 1999 Constitution or any other law or Act of the National Assembly’.

It is only after such referendum is conducted, that the results of the referendum are approved by a simple majority of all the States in the Nigerian federation supported by a simple majority vote of members of the Houses of Assembly of each State of the federation.

In the event that the referendum conducted by INEC does not result in two-third majority approval of the State creation by people of the area in question, then the process would come to an unceremonious end at that stage, and would not proceed to the next.

It must be quickly added that the whole essence of the referendum is to ensure that the whole process of State creation reflects the true intention of the residents of such area, and not merely the wishes of the political merchants who intend to utilise the process of State creation to realise personal or hidden political agenda and objectives.

The Resolution Requirement

This requirement provided for under Section 8 (d) of the 1999 Constitution is the last stage involved in the State creation process. It simply requires an approval of the proposal for the creation of a new State by a two-third majority resolution of members of both houses of the National Assembly. Once a state creation proposal has scaled the first two stages, it is very likely to succeed because it would have survived the pernicious rigours of the two earlier stages.

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As is obvious from the requirements discussed above, State creation in Nigeria is not a simplistic procedure. It is a complex process made difficult by the stringent constitutional requirements for such. Yet, in a pluralistic, multi-ethnic state like Nigeria, State creation remains a potent weapon for allaying minority fears.

This is not to say that the process of State creation should be made too easy in a way that does not consider the financial and political implications of such creation, but at the same time, State creation should not be unduly difficult in a way that denies truly deserving groups of an opportunity to find sense of belonging in a federal state like Nigeria with the ever present threat of minority domination.

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