CONSTITUENCY DELIMITATION: A RECURRING DECIMAL

By
Paul Obo Idornigie, SAN, PhD, FCIS, FCIArb (UK) C.Arb+
(Published in Benson Upah (ed), A Life of Struggle: Essays & Tributes in Honour of
Dr Peter Ozo-Eson (Nigerian Labour Congress, 2019) pp 167-196)
Introduction
The question of constituency delimitation is so critical in a democracy but we, in
Nigeria, seem to shy away from delimiting our constituencies as provided in the
various Nigerian Constitutions. Modern democracies are based essentially on indirect
representation. Where the representation is not carried out constitutionally and
equitably, injustice will be done to the affected group or persons. From the Richards
Constitution of 1946 to the 1999 Constitution (as amended)1, provisions have been
made for constituencies and their delimitation in Nigeria. Despite these ample
provisions, the last constituency delimitation in Nigeria was carried out in 1996 by the
National Electoral Commission of Nigeria (NECON) under the chairmanship of Chief
Sumner Dagogo Jack! This constituency delimitation was used for 1999, 2003, 2007,
2011 and 2015 general elections. As will be shown shortly, successive Constitutions
have provided that the last census figures should be used for constituency
delimitation. The last census figure was that of 2006 and yet the 2007, 2011 and 2015
general elections were based on the census figures of 1991. Thus there are several
unanswered questions in Nigeria relating to constituency delimitation. There is also
inaction on the part of government functionaries to carry out their constitutional and
statutory responsibilities in this regard.
In this Chapter, we would like to interrogate the importance of representative
government, trace the constitutional developments in relation to constituency
delimitation, draw attention to the unanswered questions, and use case law to answer
some of the question posed above, that is, whether constituency delimitation is a
recurring decimal or not.
We will also inquire whether the Independent National Electoral Commission (INEC),
National Assembly, the National Population Commission, the National Boundaries
Commission, the Office of the Surveyor General of the Federation, the National
Bureau of Statistics and the National Identity Management Commission have played
their constitutional and statutory roles in this regard.
Lastly, one issue that should be interrogated in this Chapter is whether all the elections
conducted by the INEC since 1999 have complied with the provisions of the 1999
Constitution especially in relation to the population quota, number of seats in each
House of Assembly and number of State Constituencies.

+Professor of Law and Director of Research, Nigerian Institute of Advanced Legal Studies, Abuja, Nigeria: Email:
prof@paulidornigie.org
1
Hereinafter referred to as “the 1999 Constitution”.

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The Importance of Representative Government
The word “democracy” literally means “rule by the people”, taken from the Greek
terms, demos (meaning “people”), and kratos (meaning “rule”). It is a political concept
and form of government, where all people are supposed to have equal voices in
shaping policy (typically expressed through a vote for representatives). Thus
democracy (“rule by the people” when translated from its Greek meaning) is seen as
one of the ultimate ideals that modern civilizations strive to create, or preserve.
Democracy as a system of governance is supposed to allow extensive representation
and inclusiveness of as many people and views as possible to feed into the
functioning of a fair and just society.2 Representation can be direct or indirect. In the
Greek city states, it was direct representation. However, the Ancient Roman Republic
planted the seeds of representative government.

Representative Government has historically denoted a system in which people elect

their lawmakers (representatives), who are then held accountable to them for their
activity within government. Representative government, or the "republican form," as it
is also known, has been widely accepted as the only practicable form of democracy.
In America, the acceptance of representative government as a legitimate democratic
form has long-standing roots. The argument can be traced back to the English
philosopher John Locke (1632–1704), whose Second Treatise of Government (1690)
was widely read by the founders of America. Locke called for consent to government
rather than direct consent to the laws. Thomas Jefferson reflected on this in the
Declaration of Independence (1776), writing that governments, rather than laws,
derived their "just powers from the consent of the governed."3

In Nigeria, since the introduction of elective seats in the 1922 Clifford’s Constitution,
we have largely practiced indirect representation. In the next part of this Chapter, we
will trace the constitutional developments. However, in the 1999 Constitution, there is
provision for 3 Senators from each State and 1 from the Federal Capital Territory and
360 Federal Constituencies.4 How were the three Senatorial Districts and Federal
Constituencies delineated?

The State Constituency is a function of Federal Constituency.5 In other words, there

is the Option X3 or X4 applied to the Federal Constituency to arrive at the State
Constituency with a proviso that no State House of Assembly shall have less than 24
seats and more than 40 seats.6 A cursory look at the State Constituencies in Nigeria

2
See Shah, Anup. “Democracy.” Global Issues.
<http://www.globalissues.org/article/761/democracy> accessed 5 30 June, 2017.
3
"Representative Government." Dictionary of American History. . Encyclopedia.com.
<http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-
releases/representative-government> accessed 30 June, 2017
4
See sections 47-49 of the Constitution
5
See sections 47, 48, 49, 71 and 75 ibid
6
See sections 91, 112-113 ibid

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will show that this has not been observed by the INEC.7 This has affected the
representation of the some states in the Houses of Assembly. In such states, is there
equal representation in the House of Assembly? In section 113 of the 1999
Constitution, it is envisaged that the boundaries of each State Constituency shall be
such that the number of inhabitants thereof is as nearly equal to the population quota
as is reasonably practicable. What is the population quota for these State
Constituencies?8 Which population quota is INEC using – that of 1963 or 1991 or
2006?

Constitutional Developments
The Clifford’s Constitution of 1922 introduced the first electoral system in Nigeria with
the provision of 4 seats comprising 3 for Lagos and 1 for Calabar in the Legislative
Council. It is noteworthy that Northern Nigeria was not represented in the Legislative
Council as the Governor General retained the power to legislative for the North. 9 The
Constitution did not create any electoral body as the Governor retained the powers to
make electoral regulations.10 As soon as the Clifford’s Constitution came into force in
1923, the elective principle stimulated an unprecedented political awakening in Lagos.
Political parties sprang up overnight and several newspapers commenced publication.
The Nigerian National Democratic Party under the leadership of Herbert Macaulay
emerged as the most powerful political organisation of the period as the party won all
the three seats in Lagos in 1923, 1928 and 1933.11
Despite the amalgamation of 1914, the elective principle excluded Northern Nigeria
from the legislature of the country whereas European business interests were
represented. It was the 1946 Richards Constitution that brought the North and South
together.
In our view, the only delimitation at that time was that the representatives must come
from Lagos and Calabar. Elections during the period were conducted with the use of
rules, regulations and Orders in Council. We will now examine other Constitutions.
a) The Nigeria (Legislative Council) Order in Council, 1946 (The Richards
Constitution)
Section 9 of the Richards Constitution provided for 4 elected members – three from
Lagos and the other from Calabar as in the 1922 Constitution. Other than the powers
given to the Governor to make regulations, there were no other express provisions on
elections and constituency delimitation.

77
See the State Constituencies in Akwa Ibom, Anambra, Bauchi, Benue, Borno, Delta, Edo, Imo, Jigawa,
Kaduna, Katsina, Kogi, Niger, Ogun, Ondo, Osun, Oyo, Rivers and Sokoto States. In all these States, there are
shortfalls as shown in the Appendix.
8
Section 75 of the 1999 Constitution provides that the latest census held in pursuance of an Act of the
National Assembly should be applied in determining the population quota.
9
Afe Babalola, Election Law and Practice (Afe Babalola, 2003) 11-41
10
See Art XXII of the Nigerian (Legislative Council) Order in Council, 1922.
11
J Nnamdi Aduba & Sam Oguche, Key Issues in Nigerian Constitutional Law (Nigerian Institute of Advanced
Legal Studies 2014) 74-75

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 b) The Nigeria (Constitution) Order in Council, 1951 (The Macpherson
Constitution)
Part 7 of the Constitution provided for Electoral Law.12 In addition, there was also the
Nigeria (Electoral Provisions) Order in Council, 1951. Under these instruments, the
Governor made regulations for the election of members including the establishment of
electoral districts. Section 64 of Macpherson Constitution provided for distribution of
seats into the respective Houses of Assembly – two elected members each from
Northern Region, Eastern Region and Western Region. Section 67 dealt with the
central legislative house – the House of Representatives - 136 members.13 Under this
Constitution, there were electoral districts determined in accordance with the relative
populations.
c) 1954 Lyttleton Constitution14
The electoral regulations made pursuant to the 1946 proclamations were later used
(with some minor variations) to conduct elections into the Regional Houses of
Assembly created under the 1954 Constitution. The regulations divided the Regions
into Electoral Districts or Divisions and each district was allocated a seat. However,
in the North, members of the House of Representatives were to be elected through an
Electoral College.
A significant development under this Constitution is the composition of the Federal
House of Representatives. It was directly elected and the composition was as follows:
- 92 from the North
- 42 from the West
- 42 from the East
- 6 from the Southern Cameroons
- 2 from Lagos
Thus the North had exactly half the number of the total number of elective seats in the
Federal House of Representatives.
d) 1960 Independence Constitution
In 1958, the Nigerian (Electoral Provisions) Order in Council for the elections into the
House of Representatives was promulgated and electoral regulations made
thereunder. The new regulations (1958 Electoral Regulations) repealed the existing
Regional Regulations. The Order in Council also created an Electoral Commission
and demarcated the country into constituencies.
Section 45 of the 1960 Independence Constitution provided for the establishment of
an Electoral Commission for the Federation while section 46 provided for
Constituencies. Subsection (1) of section 46 provided that Nigeria shall be divided
into as many constituencies as there are members of the House of Representatives in
12
See also the provisions of section 63 of the Macpherson Constitution that made detailed provisions on
electoral matters.
13
Sections 71-73 provided for representative members from the House of Chiefs and House of Assembly from
Northern Nigeria, House of Chiefs from the West and House of Assembly from the East.
14
Babaloba (n 9) 18

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such a manner as the competent authority, acting with the approval of each House of
Parliament signified by resolution, may prescribe. Subsection (7) of section 46
defined “the competent authority” as the Electoral Commission of the Federation or
such other authority appointed by the Governor General. Section 38 of the 1960
Independence Constitution provided that the House of Representatives shall consist
of three hundred and five (305) members.
Subsections (2) to (6) of section 46 of the Independence Constitution provided that in
determining a constituency, the following factors were to be taken into account:
- No constituency shall form part of more than one territory (the three Regions)
and the boundaries of each constituency shall be such that the number of
inhabitants thereof is as nearly equal to the population quota as is reasonably
practicable.
- The number of inhabitants of a constituency may be greater or less than the
population quota in order to take account of means of communication,
geographical features, the distribution of different communities and the
boundaries of the territories.
- Division of Nigeria into constituencies shall be reviewed at intervals of
less than eight and not more than ten years. However a review will be done
if more Regions are created or there is an increase in the number of members
of the House of Representatives.
- Where boundaries are altered, that alteration shall come into effect upon the
next dissolution of Parliament after the alteration has been approved by both
Houses of Parliament.
- The number of inhabitants of Nigeria or any part thereof shall be ascertained
by reference to the latest census of the population held in pursuance of an Act
of Parliament.15
- Every constituency established shall return to the House of Representatives
one member who shall be directly elected in such manner as may be prescribed
by Parliament.
Other than the 1960 Constitution, there was also the Nigeria Electoral (Transitional
Provisions) Act, 1961 that validated the 1958 Regulations. In 1962, the Federal
Parliament passed the Electoral Act, 1962 which was amended in 1964. The military
regime of 1966 suspended the Electoral Act.
e) 1963 Republican Constitution
In the Republican Constitution of 1963, section 50(1) provided for the establishment
of the Electoral Commission for Nigeria while section 51 provided for the division of
the country into constituencies as there are members of the House of
Representatives.16 Section 43 of the Republican Constitution provided that the House
of Representatives shall consist of three hundred and twelve (312) members. The
provisions in sections 51 and 52 of the 1963 Republican Constitution are the same as
that of sections 46 and 47 of the 1960 Independence Constitution.

15
See sections 46 and 47 of the 1960 Constitution.
16
See also section 52 of the 1963 Constitution

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 f) 1979 Presidential Constitution
Section 43 of the 1979 Constitution provided that there shall be a National Assembly
for the Federation which shall consist of a Senate and a House of Representatives.
Section 44 provided that the Senate shall consist of five (5) Senators from each State
while section 45 provided that the House of Representatives shall consist of four
hundred and fifty (450) members. In the 1979 Presidential Constitution, Nigeria was
made up of 19 States.17
Section 65 of the 1979 Constitution provided that the Federal Electoral Commission
(FEDECO) shall divide each State of the Federation into five Senatorial districts for
purposes of elections to the Senate and 450 Federal Constituencies for purposes of
elections to the House of Representatives under certain conditions in sections 66-70
of the Constitution Accordingly sections 66-70 of the 1979 Constitution dealt with
senatorial districts and federal constituencies; their sizes; their periodic review; time
for their alteration; ascertainment of population and time for election to the National
Assembly respectively.
Section 69 provided that in determining the size of the senatorial districts and federal
constituencies, the number of inhabitants of Nigeria or any part thereof shall be
ascertained by reference to the 1963 census of the population of Nigeria or the latest
census held in pursuance of an Act of the National Assembly after the coming into
force of the provisions of the 1979 Constitution.
At the State Level, section 85 of the 1979 Constitution provided that a House of
Assembly of a State shall consist of three times the total number of seats which that
State has in the House of Representatives and the members of the House of Assembly
shall be elected in accordance with the provisions of the 1979 Constitution. More
specifically sections 104-111 of the 1979 Constitution dealt with elections to a House
of Assembly. Consistent with the provisions of the 1960 and 1963 Constitutions,
section 140(1)(c) of the 1979 Constitution created the FEDECO while paragraph 6 of
the Third Schedule to the 1979 Constitution dealt with its powers. Section 104
provided that FEDECO shall divide every State in the Federation into such number of
State Constituencies as is equal to three times the number of Federal Constituencies
within that State under the following conditions:
- The boundaries of each State Constituency shall be such that the number of
inhabitants thereof is as nearly equal to the population quota as is reasonably
practicable.
- Periodic review of constituencies at intervals of not less than ten years
and FEDECO may alter such constituencies as it may consider desirable.
- FEDECO may also review after any alteration of the boundaries of the State in
consequence of a census.
- Where boundaries are altered, that alteration shall come into effect after it has
been approved by the House of Assembly and after the current life of that
House.

17
See section 3 of the 1979 Constitution

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 g) 1989 Constitution
Although inchoate, the 1989 Constitution which was passed on 3 May, 1989 18 had
similar provisions.19 It also established the National Electoral Commission.20 It was a
post-dated Constitution and under it, legislators were to serve on part-time basis. The
annulment of the presidential primaries of October 1992 derailed the transition to civil
rule in 1992. This was further compounded by the annulment of June 12, 1993
elections.
There was also the 1995 Draft Abacha Constitution that was neither promulgated
nor adopted.
h) 1999 Constitution
Section 47 of the 1999 Constitution provides that there shall be a National Assembly
for the Federation which shall consist of a Senate and a House of Representatives.
Section 48 provides that the Senate shall consist of three (3) Senators from each State
and one (1) from the Federal Capital Territory while section 49 provides the House of
Representatives shall consist of three hundred and sixty (360) members representing
constituencies of nearly equal population as far as possible provided that no
constituency shall fall within more than one State.
The provisions in the 1999 Constitution in relation to Senatorial Districts and Federal
Constituencies are essentially the same as that of the 1979 Constitution. Accordingly
section 71 provides that the INEC shall divide each State of the Federation into three
Senatorial Districts and subject to the provisions of section 49 of the Constitution,
INEC shall divide the Federation into 360 Federal Constituencies. Section 72 provides
that no Senatorial District or Federal Constituency shall fall within more than one State
and the boundaries of each district or constituency shall be as contiguous as possible
and be such that the number of inhabitants thereof is as nearly equal to the population

18
See Decree No. 12 of 1989 and was to come into force on 1 October, 1992.
19
Section 3 created 21 states; section 45 provided for a Senate and a House of Representatives; section 46
provided that the Senate shall consist of 3 Senators from each State and one from the FCT while section 47
provided that the House of Representatives shall consist of 453 members; sections 69-77 dealt with elections
to the National Assembly including constituency delimitation; section 88 created a State of Assembly for each
State while section 89 provided that a House of Assembly of a State shall consist of two times the total number
of seats which that State has in the House of Representatives and that the members of the House shall be
elected on part-time basis in accordance with the provisions of the Constitution; and sections 110-117
provided for elections to a House of Assembly including constituency delimitation.
20
See section 151(1)(h) and Third Schedule, Part I, paragraph 17. See also the National Electoral Commission
Act No. 23 of 1987, later Cap 255, Laws of the Federation of Nigeria 1990. There was also the Electoral Decree
of 1977. It is interesting to note that the Electoral Act, No. 8 of 1982, later Cap 105 LFN 1990 referred to
Federal Electoral Commission and not National Electoral Commission. However, the INEC Decree, 1998
repealed the NECON Decree of 1987 while the Electoral Act 2001 repealed the Electoral Act 1982.

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quota as is reasonably practicable. Other conditions include periodic review (10
years), review after a census of the population or boundary adjustment or
pursuant to an Act of the National Assembly, approval by the National Assembly
and after the current life of the Senate or House of Representatives as the case may
be.
Section 75 of the 1999 Constitution expressly provides that the number of inhabitants
of Nigeria or any part thereof shall be ascertained by reference to the latest census
held pursuant to an Act of the National Assembly.21 In other words, the elections
conducted by Prof Maurice Iwu (2007) and Prof Attahiru Jega (2015) ought to
have used the 2006 census figures but that of 1991 is the one still in use. We
hope that the census figures of 1991 will not be used in 2019 and that the period
review will be carried out.
At the State level, section 91 provides that the State House of Assembly shall consist
of three or four times the number of seats that State has in the House of
Representatives divided in a way to reflect, a far as possible, nearly equal population
provided that a House of Assembly of a State shall consist of not less than 24 and
not more than 40 members.
Section 112 also provides that INEC shall divide every state in the federation into such
number of state constituencies as is equal to three or four times the number of
Federal constituencies within that state under the same conditions as in the 1979
Constitution.22 In other words, the conditions for the creation of state constituencies
are as in the 1979 Constitution. However, before any alteration comes into force, it
must be approved by the National Assembly and after ‘the current life of the House of
Assembly’.
Electoral Act
Prior to 1982, other than the Electoral Law in the Macpherson Constitution of 1951,
there was the Electoral (Transitional Provisions) Act, 1961 which was repealed by the
Electoral Act, No. 31 of 1962. Similarly elections were conducted under various rules,
directions, regulations and Orders in Council. During the military, there was the
Electoral Decree of 1977.23 The Electoral Act of 5th August, 1982 which later became
Cap 105 of the Laws of the Federation of Nigeria 1990 was repealed by the Electoral
Act 2001. There was an Electoral Act of 2002 and then the Electoral Act of 2006
which was repealed by the Electoral Act, 2010.24 The Electoral Act 2010 has been

21
See section 69 of the 1979 Constitution that referred specifically to the 1963 census or the latest census
22
See sections 113-117 of the 1999 Constitution dealing with state constituencies, their sizes, review,
alteration, etc are relevant here.
23
See Decree No. 73 of 1977
24
Cap E6, LFN 2014

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amended three times.25 It should be noted that during the military interregnum, there
was several electoral decrees and constitutional amendments.26
In terms of constituency delimitation, this is dealt with in the Constitutions and not in
the Electoral Acts.
The history of the electoral commissions/ bodies in Nigeria can be traced back to
the establishment of the first Electoral Commission of Nigeria (ECN) which was
established to conduct 1959 elections and the post-independence electoral
commission in Nigeria, the Federal Electoral Commission (FEC), in 1960. Several
electoral bodies have been set up after FEC to conduct elections in Nigeria. 27 Here is
a list of all the electoral commissions in Nigeria, their active years, chairmen as
well as the elections they conducted.

a) Electoral Commission of Nigeria (ECN) (1958-1959) Mr R E Wraith

b) Federal Electoral Commission (FEC) | (1960-1966) | Prof. Eyo Ita Esua

(1964-1966) | Elections of 1964 and 1965

c) Federal Electoral Commission (FEDECO) | (Nov. 15 1976-1983) | Michael

Ani (1976-1979), Victor Ovie-Whiskey (1980-1983) | Elections of 1979 and
1983

d) National Electoral Commission (NEC) | (1987-1993) | Eme Awa (1987-1989),

Humphrey Nwosu (1989-1993), Okon E. Uya (June 1993- Nov. 19 1993) | 1993
Elections

e) National Electoral Commission of Nigeria (NECON) | (1994-1998) | Chief

Sumner Dagogo Jack (1994-1998)

f) Independent National Electoral Commission (INEC) | (1998 till date) |

Justice Ephraim Akpata (1998- Jan. 2000) – 1999 Elections, Dr Abel Guobadia
(2000-2005) – 2003 Elections, Prof Maurice Iwu (2005- April 28 2010) – 2007
Elections, Prof Attahiru Jega (June 2010- October 2015) – 2015 Elections, Prof.
Mahmood Yakubu (Oct. 29 2015 till date).

25
The Electoral Act, 2010 was passed into law on 20 August, 2010, amended on 29 December, 2010; in 2011
and 26 March, 2015.
26
See the Electoral Decree of 1977 as amended in 1978 and 1979 until the Second Republic enacted the
Electoral Act of 1982, Cap 105 LFN, 1990. The 1982 Act was used for the elections of 1983 until the military
struck again in December 1983 and suspended political activities. Gen Babangida promulgated the National
Electoral Commission (NEC) Decree, 1987 and late General Abacha promulgated the National Electoral
Commission of Nigeria (NECON) Decree, 1996 while Gen Abdulsalami promulgated the Independent National
Electoral Commission (INEC) Decree, 1998 and repealed the National Electoral Commission of Nigeria Decree
The 1999 Constitution formally established the INEC. A democratically elected government came into being in
May 1999.
27
Available at https://oldnaija.wordpress.com/2015/12/16/full-details-about-the-electoral-commissions-in-
nigeria/ accessed 5 February, 2017.

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The Unanswered Questions
It is clear from the constitutional provisions that INEC has powers to delimit
constituencies. Nigerians would like to know why the last delimitation exercise was
done in 1996 by the defunct National Electoral Commission of Nigerian (NECON).
The delimitation exercise was based on the 1991 census and used by INEC for all the
elections from 1999 till date whereas section 75 of the 1999 Constitution expressly
directed INEC to use the latest census, that is, the one carried out after May 1999. A
census was carried out in 2006. Since May 1999, why has INEC not conducted a
delimitation exercise? Why is the number of State Constituencies in some states lower
than the X3 (or X4) multiplication option enshrined in sections 91 and 112 of the 1999
Constitution? Why do we have a shortfall of 66 Constituencies in 19 States as shown
in the Appendix?
Is the INEC complying with the provisions of sections 113-115 of the 1999 Constitution
dealing with size of State Constituencies, population quota, periodic review of State
Constituencies, alteration of boundaries and approval by the National Assembly. Such
approval cannot come into force until after the current life of the House of Assembly?
Why is INEC not using the census figures of 2006 conducted in a 36-state structure
but still using the figures derived from the 1979 Constitution conducted in a 19-state
structure? Why is Ondo, Osun and Edo States having 9 Federal Constituencies
each and Kaduna and Katsina having 16 and 15 respectively?28 It is noteworthy that
where the number of Federal Constituencies is low, the number of State
Constituencies will also be low based on the X3 Option. What is the population quota
for these States? Indeed why X3 Option when the Constitution provides for X3 or X4.
Why not X4?
We will attempt to answer the unanswered questions subsequently in this Chapter.
Is Constituency Delimitation a Legal or Political Question?
In view of the foregoing, we submit that constituency delimitation is not only legal but
political if not controversial question and hence the absence of the political will and
resources to carry out a constitutional duty.
The current distribution of Senatorial Districts, Federal and State Constituencies,
wards and polling stations is attached herewith.29 As has been stated, the figures
used for the delimitation are those conducted by NECON in 1996. How were they
arrived at bearing in mind that they were based on the 1979 Constitution and 1991
census? If the population quota of 2006 is used, will this delimitation still be the same
bearing in mind that a State House of Assembly shall consist of not less than 24 or
more than 40 members? Where a state that ought to have more than 24 members in
the House of Assembly has less than the number, can we say that that State House

28
See the Appendix
29
Available at http://www.nigerianmuse.com/20070414084834zg/sections/important-
documents/inec-distribution-of-senatorial-districts-federal-and-state-constituencies-electoral/
accessed 5 February, 2017.

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of Assembly is properly constituted? Can we imagine the injustice being done to such
states in Nigeria?
In the 1979 Constitution, section 65 provided for 5 Senators from each State at a time
that we had 19 states and 450 members in the House of Representatives. However,
in the 1999 Constitution, section 71 provides for 3 Senators from each State in a 36-
state structure and 360 members in the House of Representatives. In terms of division
of states into constituencies, section 104 of the 1979 Constitution provided that
FEDECO shall divide every State in the Federation into such number of State
constituencies as is equal to three times the number of Federal Constituencies within
that state (“The X3 Option”). However section 112 of the 1999 Constitution has a
similar provision except that it is not just X3 Option but X3 or X4 Option). Why the
reduction in the number of Senators and members of the House of Representatives?
In our view, the reduction has resulted in the shortfalls.
For the rest of this paper, we will attempt to rely on case law in addressing the issues
arising from constituency delimitation. At the moment, there are several cases in court
(from the High Court to the Supreme Court) dealing with the constituency delimitation.
How has INEC dealt with them in terms of complying with court orders especially in
Ushongo and Oju Local Government Areas of Benue State? We must acknowledge
one fact. Creation of states since the military era has had its own complications on
constituency delimitation. For instance, Benue State was created out of Benue-
Plateau State and Kogi State was created out of Benue and Kwara States. Ebonyi
was created out of Enugu and Abia States. These are states that may have
complications in terms of boundary adjustments. However, most of the States created
in 1991 and 1996 were created from a state and not two states – Abia from Imo,
Adamawa from Gongola, Akwa Ibom from Cross River, Bayelsa from Rivers, Delta
from Bendel and Edo from Bendel. Such states may not have the complications in
terms of boundary adjustments and constituency delimitation.
Two cases will be analysed, namely, Ushongo Local Government Area v INEC30 and
Oju Local Government Area v INEC31 to demonstrate the effect of non-compliance
with the provisions of sections 112-115 of the 1999 Constitution and why INEC cannot
comply with the constitutional provisions.
Ushongo Local Government Area v INEC
In Ushongo Local Government Area of Benue State, the agitation is that Mbagwa
Constituency that existed under 1979 Constitution should be restored. We must bear
in mind that under the 1979 Constitution we had 19 states and under the 1999
Constitution we have 36 states. In this case, the thrust of the claim is that in the
period 1979 to 1993, two State Constituencies existed in Ushongo Local Government
Area, namely, Ushongo and Mbagwa but they now have one constituency. They also
contended that the number of Assembly Constituencies in Benue State was lower than
the X3 multiplication option enshrined in sections 91 and 112 of the 1999 Constitution.

30
Suit No. FHC/ABJ/CS/562/2004, Judgment delivered by BFM Nyako, J on 12 January, 2005.
31
(2007) 14 NWLR (Pt 1054) 242

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On 12 January, 2005 the Federal High Court, Abuja per Nyako, J granted their reliefs
and ordered as follows:
a) Having regard to the provisions of sections 91 and 112 of the 1999 Constitution,
INEC should include the suppressed constituency in Ushongo Local
Government Area in the list of Constituencies forwarded to the National
Assembly for approval.
b) INEC should restore the suppressed constituency in Ushongo Local
Government Area in order to bring the number of constituencies to two as was
the case from 1979 to 1993.
INEC did not comply with the court orders. A restoration would mean the alteration
of the boundaries between Ushongo and Mbagwa Constituencies which the National
Assembly has to approve and which can only come into force after the current life of
the House of Assembly. Ushongo Local Government Area approached the Federal
High Court sitting in Makurdi for the enforcement of its orders.32 On 19 November,
2015, the Court granted the relief and further ordered as follows:
I. Ushongo Local Government Area of Benue State should have two (2) State
Constituencies “by whatever name called”.
II. Elections should be held in each of the two (2) constituencies.
INEC has had challenges complying with the court order. The challenges are analysed
hereunder.
Oju Local Government Area v INEC
The questions formulated for the determination of the court in this case are whether
the Benue State House of Assembly was properly constituted as envisaged in sections
91 and 112 of the 1999 Constitution and whether the Plaintiff was properly excluded
from the restoration that INEC sought to carry out. Arising from the questions,
declaratory reliefs and mandatory orders were sought. The constituency involved in
this case is Uwokwu. The case failed at the Federal High Court even though it was
on all fours with Ushongo Local Government Area v INEC but succeeded at the Court
of Appeal.
Constituency Delimitation: A Recurring Decimal
1960 Independence Constitution is the first Constitution that has detailed provisions
on constituency limitation. These provisions were replicated in the 1963 Republican
Constitution, the 1979 and 1999 Constitutions. At the time that the last constituency
delimitation was conducted in Nigeria, the operative Constitution was the 1979
Constitution though parts of it had been suspended by the military that were in power
from 1983-1998.
When preparations were made for the General Elections of 1999, consistent with
section 75 of the 1999 Constitution, the latest census was that of 1991. Similarly when
General Elections were held in 2003, the latest census was that of 1991. However,
when General Elections were held in 2007, the latest census was that of 2006 and not

32
See Suit No FHC/MKD/CS/39/2014, Judgment delivered on 19 November, 2015

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1991. Unfortunately, the elections were conducted using the 1991 census which was
no longer the latest. General Elections were held in 2011 and 2015 still using the
census of 1991 and not 2006.
It is within the powers of INEC to delimit constituencies as encapsulated in sections
112, 113 and 114 of the 199 Constitution. The Constitution empowers INEC to divide
each State of the Federation into constituencies, redraw their physical boundaries and
assign as nearly equal population to each one of them as is reasonably practicable.
There are four conditions for the review as stated in section 114(1) and (2) of the
Constitution, namely, the review must be done at intervals of not less than ten (10)
years or by reason of alteration of boundaries of a State or by virtue of a new
population census for the country or in pursuance of an Act of the National Assembly.
Section 115 of the 1999 Constitution further provides that when the boundaries of a
state are altered, INEC must seek the approval of the National Assembly and such
approval cannot take effect until after the current life of the House of Assembly.33 Other
than the last condition, that is, an Act of the National Assembly, all the other three
conditions have been present since 2006. It must be conceded that although it is the
constitutional responsibility of INEC to conduct constituency delimitation, it relies on
other organs of government like the National Assembly, the National Population
Commission, the National Boundaries Commission, the Office of the Surveyor General
of the Federation, the National Bureau of Statistics and the National Identity
Management Commission.
The inherited state constituencies delineated in 1996 are not consistent with the
provisions of section 112 of the 1999 Constitution when Option X3 is applied to the
number of Federal Constituencies, that is, 360 Federal Constituencies. 34 This account
for the shortfall of 66 Constituencies nationwide.
In view of the conditions for the division of a state and creation of a constituency as
enshrined in sections 112-115 of the 1999 Constitution, INEC could not comply with
the two court orders. Similarly, there are other complications as the parameters used
for the delimitation exercise have changed especially with the creation of Kogi State
out of Benue and the fact that there was no Ushongo Local Government in 1979.
Ushongo was carved out of Kwande Local Government Area in 1992. More
fundamentally, the demographics may have changed. What was the population figure
in 1979 using the 1963 population census and today, using the 2006 population
census?
This is the dilemma faced by INEC. Meanwhile the current Speaker of the House of
Assembly in Benue State represents the whole of Ushongo Local Government Area.
If the Speaker loses his seat, then the political equation in Benue State will be affected.
As if this is not enough, the current Speaker has a Certificate of Return duly issued by
INEC and by the provisions of section 68(c) of the Electoral act, 2010 (as amended)
once a declaration is made by the Returning Officer, only a tribunal or court in an
election petition proceedings can set it aside.

33
See also section 74 for similar provisions in the case of the National Assembly
34
See section 71 of the 1999 Constitution.

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Constitutionally, it is INEC that is mandated to carry out constituency delimitation.
However, for INEC to carry out this mandate, it needs the cooperation and assistance
of the National Assembly to approve the delimitation; the Office of the Surveyor
General of the Federation for the maps of the areas concerned; that of the National
Population Commission for the population data of the areas affected; that of the
National Boundaries Commission for the management of any disputes that may arise
from boundary adjustment and apply technology in the form of Geographic Information
System (GIS). INEC must also take into account historical contiguity and community
sensitivities. All these cannot be championed by INEC alone. This takes us to the
unanswered questions in this paper. The answer was addressed in the Report of the
Committee on Electoral Reform (“the Uwais Report”).35
The Recommendation of the Uwais Report
On 26 August, 2007, the late President, His Excellency President Umaru Musa
Yar’Adua set up a 27-man Electoral Reform Committee under the Chairmanship of the
former Chief Justice of Nigeria, Hon Justice M L Uwais “to examine the entire electoral
process with a view to ensuring that we raise the quality and standard of our general
elections and thereby deepen our democracy.”
At the end of its deliberations, the Committee produced the Uwais Report. In the
Uwais Report, the Committee noted that the task of constituency delimitation is
demanding and involves divergent skills and competencies. INEC does not currently
have the expertise, political will, competence, staff strength and funds to effectively
carry out such a sensitive assignment. However, it is possible to aggregate expertise
from existing federal government agencies to carry out such a task. Accordingly, the
Committee recommended that a Constituency Delimitation Commission should be
established with institutional representation from INEC, National Population
Commission, National Boundaries Commission, Office of the Surveyor-General of the
Federation, National Bureau of Statistics and National Identity Management
Commission.36 The Commission will handle the task of constituency delimitation and
the complaints that arise from it. In this regard, constitutional amendment is
imperative. The function of constituency delimitation should be transferred to the new
Commission to be established instead of vesting the powers on INEC. It is our view
that until this is done, constituency delimitation in Nigeria will be a recurring decimal.
Concluding Remarks
Constituency delimitation is critical in a representative government. A properly
conducted constituency delimitation will ensure an inclusive government. The various
cases in court are indicative of the importance of this assignment. Representation is
the bedrock of democracy. Constituency delimitation is a critical component of the
electoral process and the participation of the citizens in the process. It is not only a
constitutional issue but statutory, political, demographic, geographical, historical,
cultural and social.

35
See Report of the Electoral Reform Committee, Vol 1 Main Report, December 2008.
36
See Uwais Report, pages 32 and 119.

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The defunct National Electoral Commission under powers derived from the 1979
Constitution carried out a Constituency Delineation in 1996. Why is INEC, in 2018,
still using this ‘inherited’ delineation? It is totally unacceptable that in 2018, INEC is
still using the delimitation exercise of 1996 when all the dynamics and fundamentals
have changed.
In my view, the problem cannot be solved by the courts alone. It can also not be
resolved by INEC alone. It requires the cooperation of INEC, National Assembly, the
National Population Commission, the National Boundaries Commission and the Office
of the Surveyor General of the Federation. It also requires the support of the National
Bureau of Statistics and the National Identity Management Commission.
It is also noteworthy that the National Population Commission is preparing for another
census in 2018. Will the census figures be ready before the 2019 election? Even if
the figures are ready, will the constituency delimitation be ready? If all these are not
done, there will still be the issue of constitutionality of the elections conducted in clear
violation of section 75 of the 1999 Constitution.
Where a state that ought to have more Federal Constituencies is denied, when the X3
(or X4) Option is exercised, the state will have less number of members in the State
House of Assembly. Similarly, where a state that ought to have more than 24
members in the House of Assembly has just 24 because of the inaction of government
functionaries, this amounts to injustice and under-representation.
In view of the fact that all the elections conducted since 2006 were not in substantial
compliance with the provisions of sections 75, 91 and 112 of the 1999 Constitution, it
can be argued that the elections were unconstitutional. Can we also say that the State
Houses of Assembly that have ‘suppressed’ constituencies are properly constituted?

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 Appendix

INEC Distribution of Senatorial Districts , Federal and State Constituencies, Electoral

Wards, Polling States

No. of No. of
No. of
No. of Federal State No. of No. of
S/N State Senatorial
LGA Consti- Consti Wards Polling Stations
Districts
tuencies tuencies
1 2 3 4 5 6
SW
1 Ekiti 16 3 6 26 177 2195
2 Lagos 20 3 24 40 245 8465
3 Ogun 20 3 9 26 236 3210
4 Ondo 18 3 9 26 203 3009
5 Osun 30 3 9 26 332 3010
6 Oyo 33 3 14 32 351 4783
TOTAL SW 137 18 71 176 1544 24672

SE
7 Abia 17 3 8 24 184 2676
8 Anambra 21 3 11 30 326 4623
9 Ebonyi 13 3 6 24 171 1784
10 Enugu 17 3 8 24 260 2959
11 Imo 27 3 10 27 308 3523
TOTAL SE 95 15 43 129 1249 15565

SS
12 AkwaIbom 31 3 10 26 329 2982
13 Bayelsa 8 3 6 24 105 1805
14 CrossRiver 18 3 8 25 193 2283
15 Delta 25 3 10 29 270 3625
16 Edo 18 3 9 24 192 2629
17 Rivers 23 3 12 32 319 4441
TOTAL SS 123 18 55 160 1408 17765

NW
18 Jigawa 27 3 11 30 287 3527
19 Kaduna 23 3 16 34 255 5108
20 Kano 44 3 24 40 484 8074

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21 Katsina 34 3 15 34 361 4896
22 Kebbi 21 3 8 24 225 2398
23 Sokoto 23 3 11 30 244 3035
24 Zamfara 14 3 7 24 147 2516
TOTAL NW 186 21 92 216 2003 29554

NE
25 Adamawa 21 3 8 25 226 2609
26 Bauchi 20 3 12 31 212 4074
27 Borno 27 3 10 28 312 3933
28 Gombe 11 3 6 24 114 2218
29 Taraba 16 3 6 24 168 1911
30 Yobe 17 3 6 24 178 1714
TOTAL NE 112 18 48 156 1210 16459

TOTAL NC
31 Benue 23 3 11 29 276 3691
32 Kogi 21 3 9 25 239 2548
33 Kwara 16 3 6 24 193 1872
34 Nassarawa 13 3 5 24 147 1495
35 Niger 25 3 10 27 274 3187
36 Plateau 17 3 8 24 207 2631
TOTAL NC 115 18 49 153 1336 15424

37 Abuja FCT 6 1 2 0 62 562

GRAND TOTAL 774 109 360 990 8812 120001

Available at http://www.nigerianmuse.com/20070414084834zg/sections/important-
documents/inec-distribution-of-senatorial-districts-federal-and-state-constituencies-
electoral/ accessed 5 June, 2018.

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