Legislative drafting methods for alteration of Constitutions:Lessons from Nigeria and the kingdom of Lesotho 1999 to 2023

Abstract

The conventional understanding of a Constitution, particularly a written one, is that it should be a relatively rigid document. the high frequency and broad scope of amendments in both Nigeria and Lesotho, but especially in Nigeria , challenge this notion. this observation leads to several crucial inquiries, as set out in the research questions/objectives of the study, such as the primary factors contributing to the accumulation of alterations and structural inconsistencies in the Constitutions of Nigeria and Lesotho, as well as the methodological approach of comparative law can be applied to this study that would allow for a rigorous and insightful analysis of Constitution alteration methods in both Nigeria and the kingdom of Lesotho. Given the inherently comparative nature of this research, a crucial preliminary step was determining the most effective approach to ensure the extraction of valuable lessons and identifying potential areas of convergence. this led to adopting the functional theory of comparative law. this unique approach stemmed directly from the insights gained during the comparative legislative drafting course undertaken in the second semester session of year 1 of this programme, which encouraged a deeper, more practical examination of how legal transplants could help strengthen the shortcomings of a legal system. Nigeria and the kingdom of Lesotho share a range of historical, legal and institutional similarities, stemming from their common administrative and governance experience under British colonial rule. The period from 1999 to 2023 presented a unique, compelling and rich landscape of constitution alterations in both countries. Thus, based on Jhering, Zweigert and Kotz's functionality theory, this study finds a significant lacuna in the formal alteration procedure stipulated under section 9 of the 1999 Constitution. This lacuna, which has fueled considerable legal debate and litigation, as detailed in the literature review of this study, justifies examining and potentially adopting the more effective procedure found in Section 85 of the Lesotho Constitution. It was observed that Lesotho's Constitutional Amendment Acts tend to be more subject specific, addressing specific areas of the Constitution in each Act. This contrasts sharply with the Nigerian approach, where alterations often encompass multiple subjects which are bundled into one single Bill. This dissertation distinguishes itself by being the first within the institute to apply the functionality test specifically in comparing the legislative drafting methods of Nigeria's and Lesotho's Constitution Alteration Acts in a doctrinal legal research. Not to mention the direct alignment of this research focus with the core mandate of the National Institute for Legislative and Democratic Studies. Accordingly, the Institute will find this study not only relevant but also highly valuable in advancing its mission and contributing to the broader discourse on legislative and democratic development in Nigeria.