by Malachy Ugwummadu
This position paper sets out to examine the crucial place of an organic constitution in consolidating the logic of democracy as the best known mechanism for effective regulation and coordination of human affairs in any given political setting. It emphasizes the early faith that the founding fathers of Nigeria had in the philosophy of federalism and presents the dangers inherent in a dysfunctional federation in the management of a heterogeneous and plural society. It traces the journey of constitutionalism in Nigeria and appreciates that, at best, and till this moment, Nigeria has only had legal and valid constitutions but certainly not legitimate ones. It examines the constant character and processes towards a people’s constitution and argues that the conspiracies of the Colonial Masters in the first instance, the Nigerian Military thereafter and now their elite political collaborators in imposing Constitutions on the people of Nigeria have remain both a travesty and a tragedy with perverse consequences. Recommended proposals are offered with emphasis on specific thematic areas of concern but submits, in conclusion, that constitutional amendments cannot cure the fundamental flaws that characterize the Constitution of the Federal Republic of Nigeria 1999 (As Already Amended).
A Constitution in Search of Legitimacy
The continued amendments of the Constitution of the Federal Republic of Nigeria 1999 (As already Altered) will be endless for as long as the legitimacy of the Constitution itself is not established. The only way to bring about a legitimate Constitution of the people is to institute a process-led effort targeted at the people of this country in their original ethnic nationalities, professional entities, socio-cultural affiliations, youth and gender groupings, persons living with disabilities, workers and even faith-based associations etc. The notion and practice of constitutional amendment presuppose that the document sought to be amended is legitimate. We miss the point when we proceed on this premise and will continue to expend the scares resources and precious time of the country by merely producing a valid constitution without the requisite legitimacy because the constitution sought to be amended is both a lie and a fraud. Thus, the foundation to build on does not exist. Unfortunately, it appears that the National Assembly at the dawn of the 4th Republic in 1999, through their successive Deputy Senate Presidents have remained adamant in perpetuating these wasteful exercises from Messrs. Ibrahim Mantu to Ike Ekweremadu and now Ovie Omo-Agege.
1999 Constitution: A Metaphor for the conflict between Constitutional validity and legitimacy.
For a constitution to be legitimate it must emanate from the people who will, in turn, have ownership of it and defend it. Thus, the repeated voyage of seasonal constitutional amendments merely papers over the fundamental flaws inherent in our grundnorm thereby divesting it of the people’s ownership even if it pretentiously acclaims so in its preamble. Yet in the same introduction, the contradiction is laid bare when it affirms itself as DECREE NO 24 of 1999 foreclosing every debate that this is not a people’s constitution. The implication of this is that it contradicts the provision of S. 14(2)(a) which posits that “ sovereignty belongs to the people of Nigeria from whom through this constitution derives all its powers and authority”
The 1996 Constitution of South Africa, for instance, presents an ideal constitution making process that vests legitimacy as opposed to validity on a constitutional document. The preamble to the constitution traces the historical journey of the Country up to that moment when it affirmed that the citizens have enacted for themselves a people’s constitution. It highlights the major turning points in the trajectory of their experiences as a country, which consciously struggled towards nationhood. To guarantee that legitimacy, deriving from the participation of the people of South Africa, the draft Constitution was massively circulated to the constituting ethnic groups and translated into their respective local languages in the preceding years before it was promulgated. Adequate advocacy on the content of the document was carried out in a manner that gave everyone and groups an opportunity to understand, contribute and develop a sense of ownership over the Constitution. This can also be said of the 1995 Constitution of Uganda, that of Eritrea, and even the 1994 Ethiopian Constitution, all within the African Continent.
Between 1999 and 2018, there have been four (4) different amendments in the following orders:
a) On July 16th 2010, the Constitution of the Federal Republic of Nigeria 1999 was altered for the first time. There were series of amendments therein but S.14 altering original S.145 (1) stood out to deal with the constitutional requirement of the President to transmit power once he is leaving office temporally or unable to perform the functions of his office. It was further provided in S. 145(2) that if the President fails or is unable to transmit power within 21 days, the National Assembly shall, by simple majority resolution mandate the Vice President to perform the functions of the office of the President as Acting President until he notifies the President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.
b) On November 29th, 2010 (barely four months after, the same National Assembly came up with yet another set of alterations essentially targeted at the time frame within which INEC shall conduct elections into the respective elective offices in the country and the determination of election petitions. It is instructive to note that some of the alterations in this second amendment actually amended provisions of the first Alteration and not the substantive provisions, which underscores the haste and imprudence on the part of the legislators.
c) On the 4th of March 2011, the 1999 Constitution was further amended essentially to expand the Jurisdiction of the National Industrial Court and make it a court of record.
d) Finally, in 2018, the fourth alteration to the 1999 Constitution focused on the age qualifications for elective officers as well as financial autonomy to the Legislature across the tiers of government.
It should be observed that in all of these amendments embarked upon, very little, if any touched on the crucial needs for structural reordering of Nigeria through a fresh Constitutional arrangement including the vexed issues of devolution of power, decentralized (state) policing and judicial system, independence of the Judicial and Legislative arms of government, autonomy of the local government, citizenship, enforcement and justiciability of socioeconomic rights enshrined under Chapter Two of the Constitution and even resource control etc. To what extent, therefore, would issues of age qualifications for elective officers, transmission of written declarations by the President to the leadership of the National Assembly, or time frame within which elections are conducted and disputed in election tribunals or even the expansion of the jurisdiction of the National Industrial Court address the fundamental question of constitutional and structural reforms in Nigeria? In fact, you would recall that in some of the previous exercises, certain areas including the unity and corporate existence of Nigeria were declared “non-negotiable” and could not be discussed. In other instances and at different times, the inordinate ambitions of Late Gen. Sani Abacha and Olusegun Obasanjo completely compromised those efforts. In the end, it is important to note that what is required is too fundamental for the business of legislation and law making but a fresh social engineering by the peoples of this great country in determining the bases of their continued coexistence.
Pre and Post Colonial Constitutional Efforts
Prior to the foregoing efforts, the Nigerian People have been largely alienated from the processes of previous constitutional arrangements that it had. The first major constitutional order was the 1922 Clifford’s Constitution. It was the first constitutional arrangement by which the right of Nigerians to participate in their affairs was recognized albeit in a circumscribed manner and over limited subjects. In no practical way however, were the people of Nigeria instrumental to the making of that constitution. It was simply given by the colonial masters.
Sir Arthur Richard’s Constitution of 1946 effectively divided this country into three (3) regions of the North, West and East and laid the foundation for federalism in Nigeria. It was no better than the Clifford’s Constitution being largely the product of British colonial masters to the Nigerian people.
Sir John Macpherson’s Constitution of 1951 enhanced greater participation of Nigerians in their own affairs through layers of constitutional structures including bicameral legislatures in the Northern and Western regions. Each of the Regions had the executive bodies while the Governor still retained his veto powers notwithstanding that there was an unprecedented processes of consultation with the people of Nigeria before coming into being of this Constitution.
Whereas regionalism and federalism berthed with the 1951 Macpherson’s Constitution, it did very little to create and provide both the institutional and leadership structures to deal with those political expansion leading to the crisis of the following years. The then British Secretary of State for the Colonies, Oliver Lyttleton rose to the occasion, provided the needed political leadership and created the necessary platform for Nigeria politicians and technocrats to attend the London Conference in 1953 culminating in the 1954 Lyttleton Constitution.
The Lyttleton Constitution of 1954 essentially established the regional governments as independent tiers of government away from the Central Government in relation to their executive and legislative powers. Besides, Lagos was effectively made the Federal Capital Territory distinct from the Western Region. Similarly, Nigerian Judiciary was created along regional lines such that each region had and maintained its judicial arm up to appellate courts. No doubt, it was the Lyttleton’s Constitution that first operationalised the federal structure in Nigeria.
Eventually and at independence in 1960, Nigeria was granted political independence as a sovereign state under the 1960 Independent Constitution, which provided for a parliamentary system of government, three (3) regions, bicameral legislative institutions both at the federal and regional levels. The legislative power of the country was delineated into three categories contained in the exclusive, concurrent and residual lists. Although independent yet, the British Monarch was still recognized by the same constitution as the Head of State with powers to appoint a resident agent known as the Governor General to exercise executive powers on her behalf while the Prime Minister elected by the federal parliament acted as the Head of the Federal Executive Council.
The same Constitution reserved the final judicial authority with the British Queen in England at the Privy Council instead of the Federal Supreme Court. With this arrangement, the purported independence of Nigeria as a sovereign state was heavily compromised. Certainly, this could not have been all that our founding fathers fought for, to be bound by a constitution that alienated their sovereignty and suspended their rights.
Essentially, it was these anomalies that the 1963 Republican Constitution addressed and effectively cured by establishing a properly constituted Parliamentary system of government which replaced the appointee of the Queen to a President and a Prime Minister elected directly by members of the Nigerians federal Legislature in the same way that the Federal Supreme Court became the final appellate judicial authority over any person or matter in Nigeria.
In the end, it is easy to appreciate that despite the incremental progress and concessions made within the time under review over the forgoing constitutions, it is obvious that all the constitutional developments were without serious inputs of the Nigerian People on whose behalf the various documents were produced. It is to be further understood that even when greater participation in the affairs of Nigerians was encouraged through the Constitutions starting with the 1946 Richard’s constitution, it was apparent that the British Colonial Masters literally bequeathed those documents to us and left intact certain delegitimizing clauses that underscored their continued domination in the affairs of Nigeria and over Nigerians.
Compelling reasons to reject imposed Constitutions
Thus, if in 2021, we still have and operate a constitution drawn by a few selected number of soldiers without the authority, consent and imprimatur of the Nigerian people whom it was made for, such a document must be jettisoned for lacking in constitutional integrity and legitimacy. It makes sense to dispute the basis of accepting such documents as our grundnorm considering the foregoing submissions made. Yet, we must proceed to articulate are positions preparatory to a properly constituted process for an autochthonous constitution.
Mechanisms for crafting a truly people’s Constitution
It is our further proposal that the Government of the Federal Republic of Nigeria could send an executive bill to the National Assembly for an Act to Enact a Constitution for the Federal Republic of Nigeria or the National Assembly itself can initiate such a bill setting out the modalities for the convocation of the people’s conference with a view to addressing the following areas:
a) Identify all the relevant and critical peoples of this country to participate and be represented therein.
b) Specify the broad areas and issues for consideration.
c) Provide the necessary legal framework for the processes, procedure and proceedings and
d) Prescribe possible time frame within which to conclude the exercise.
But very importantly, the legislation must necessarily provide that the outcome of the deliberations, resolutions must be returned to the Nigerian people through a referendum or plebiscite for final endorsement.
This has become very important and necessary for the following reasons:
• It allays the fears of the legislatures that they may not be part of the constitution making processes. Indeed, the legislatures across board will have to send representatives to the assembly.
• It provides a firm legal framework to the proposed exercise and guarantees the finality of decisions of Nigerians without further manipulation as a true expression of the peoples’ will.
• The final document will then truly become an autochthonous constitution, people-driven, process-led, citizens-centered and therefore owned and can be defended by the people.
• The members of the National Assembly cannot craft a constitution but can make and amend existing laws and not constitutions.
• There is a difference between a law and a constitution in the hierarchy of Legislations.
The Law are pieces of legal standards and principles being aggregates of legislations and judicial precedents enacted by the legislature in a democratic setting to regulate human activities and powers of governments in relation to citizens, recognizing the powers and privileges that the citizen have in that society. The Constitution on the other hand is “the fundamental and organic law of a nation or state that establishes the institutions and coersive apparati of government, defines the scope of governmental sovereign powers and guarantees individual civil rights and liberties”. Black’s Law Dictionary, Eight Editions. P. 330
It is this constitution, being the grundnorm that provides the source and provenance of every other Law and Legislation in the society. They are by the peoples of a political entity and not representatives in the Legislature. In that regard, the constitution is higher in hierarchy to other laws and can only be made by the people to vest on it legitimacy as opposed to mere validity.
Thematic areas for consideration
In the event that the people’s conference holds as proposed or we elect to intervene either directly or in collaboration with other sister organizations/ groups sharing similar interests, or that we indeed, decides (as it’s most likely), to have our own document for internal deliberation towards future conferences, we further propose that the following issues among others should be given serious consideration. Generally speaking, we, subscribes to a thoroughly restructured country from the present socio-economic and political structure, which have retarded competitive growth, development, unity and progress in Nigeria.
We are interested in a restructured Nigeria that is focused on:
➢ Promoting equity and justice to all federating units and citizens.
➢ Enthronement of healthy and dynamic competition among and within all constitutive units of our society.
➢ Building an egalitarian society anchored on rule of law, peaceful co existence and progress.
➢ Maximum and optional utilization of Nigeria’s vast natural, human and physical resources.
➢ Provision of the enabling socio-economic environment for commerce and economic growth.
➢ Drastic reduction in the size and cost of governance.
➢ Promotion and enforcement of the fundamental objectives and directive principles of state policies as outlined in Chapter Two of the Constitution.
On the specific areas of concern, proposes as follows:
1. Devolution of state powers in favour of sub national units.
By this, we have proposed a drastic reduction of the 68 items presently under the Exclusive Legislature list in the 2nd Schedule to the 1999 Constitution. There are a long list of issues over which the Federal Government alone has powers to legislate upon. The following items amongst others in the list should be removed:
• Bankruptcy and insolvency (item 5)
• Construction, alteration and maintenance of roads whether trunck, highway or intercity roads. (item 11)
• Drugs and Poisons (item 21)
• Election into Governors or Deputy Governors offices (item 22)
• Finger Prints, Identification and Criminal Records. (item 28)
• Fishing and Fisheries anywhere, whether in deep seas, oceans, waterways, rivers, ponds or inland waters within Nigeria. (item 29)
• Incorporation, regulation and winding up of bodies and corporate (item32)
• Insurance (item 33)
• Patents, trademarks, or business names, industrial designs and merchandise marks (item43)
• Prisons (item 48)
• Quarantine (item 54)
• Railways (item 55)
• Establishment and regulation of authorities over historical monuments archaeological sites, museums and libraries and education (items 60 (b) (c) & (e) respectively.
• Formation, annulment and dissolution of marriages (item 61)
• Traffic on Federal Trunk roads whether trunck, federal or intracity roads (item 63)
• Weights and measures (item 65).
It is by the same default arrangement of power concentration at the centre reflected in the enormous powers of the National Assembly under this list that several legislations have been promulgated vesting the Federal Government and its agencies with the sole powers to issue licenses to transmit and distribute electricity. See S. 62 of the Electric Power Reform Act Cap. E7 Laws of the Federation 2004.
Thus, where individual federating units like Lagos, Rivers, Cross Rivers and now Edo States for instance are able to generate enough electricity to power their respective states, they are unable to transmit and distribute the same power for the benefits of their citizens and the industrialization of their states in view of the requirement of licensing by the Nigerian Electricity Regulatory Commission over transmission, distribution and system operations under the law. This is regardless of the fact that the reforms in the sector was intended to encourage privatization of the sectors for more efficiency, assured technical knowhow and capacity. This situation has hindered most States that were poised to confront the intractable power challenges and set their states on the path of massive industrialization and economic growth.
Curiously, the same Constitution outlines about 30 other items over which the state and the Federal legislatures can jointly exercise legislative powers including power generation, transmission and distribution of electricity to areas not covered by a national grid system within the state. See item 14(b) under the Concurrent Legislative List. Yet, by the very canon of legal and legislative interpretation, once there exists a subject over which both the Federal and State Legislative authorities can legislate on, the legislation by the Federal Authority prevails.
Thus, whereas, the Exclusive Legislative list is defined and exclusive to the National Legislative Powers, items on the Concurrent Legislative list could be legislated upon by both the Federal and State legislature. The Residual List which ought to be exclusive to the state is not enumerated but regarded as every other item that is not found in either the Exclusive or Concurrent Legislative Lists. That is amorphous and ambivalent.
The identified items in the exclusive legislative list should be taken to the residual list to be created and made exclusive to the States in a manner that vests the federating units or sub national governments the flexibility for delivering the expected dividends to their citizens.
2. Adoption of Fiscal Federalism, Resource Control and Equitable Revenue Allocation Regimes.
Closely related to the issue of devolution of state powers is the principle of fiscal federalism which recognizes the juxtaposition of state power at various tiers of government in a federation focusing on the resource base of the economy, allocation and management in ways that trigger rapid economic development through adequate and equitable distribution of socio-economic resources and infrastructure to the citizens of the federating units. By and large, the struggle for fiscal federalism, resource control and revenue allocation by constituting units of a federation is all about the even and balanced distributions of the resources of the federation, fiscal justice and equity.
At the moment in Nigeria, the twin factors of population and geo-political space as reflected in constituencies and districts determine allocation of the state resources. If allowed to remain without a revised or renegotiated revenue sharing formula in favour of the producing regions of the mainstay of the Nigeria economy- the minority regions including the Niger Delta will be permanently short-changed. Such reordered resource control mechanism and an improved revenue allocation formula in favour of owner regions will douse the tension in the land, engender healthy and positive competitions among the federating units in the manner that was experienced between 1960-67. Similarly, within a region or federating unit, a special development / intervention fund of not less than 25% should be set aside to cater for the special development needs of mineral bearing and producing communities in the same manner that States such as Lagos bearing the burden and accommodating major national infrastructure and providing national services thereby should be accorded special attention and assistance in maintaining and sustaining those national assets.
This is already being practiced with the 13% derivation formula, the NDDC intervention agency but grossly inadequate and poorly managed with widespread corruption defeating the purpose of their creations. Most of the oil-producing States also have such interventionist bodies in their respective states which have largely become cash cows for regular slush funds, political supports and patronages.
3. Federal or Parliamentary Systems of Government with Fewer Federating States and Bureaucracies.
The current Presidential System of government in Nigeria has been poorly operated, poorly managed and now unwieldy, expensive and unsustainable. It is made worse because it is replicated in each of the thirty six (36) sub-national structures including the Federal Capital Territory with an unnecessary and unsustainable bureaucracies gulping about two thirdly (2/3) of both the National and sub-national budgets with very little left for capital and infrastructural developments.
Consequently, it is our proposal that we return to Parliamentary System of Government or a thoroughly pruned Presidential government in which ministries of the federation will not exceed 24 from the present 42 ministries. This will require that S.147 (3) of the 1999 Constitution, providing that at least, one minister must be appointed from each state of the federation be dispensed with. Indeed, some of the ministries and ministers, agencies and departments of government performing overlapping functions and responsibilities should be fused together to reduce the size and cost of running the currently over blotted bureaucracies.
The same should be applicable to the sub national government with a drastically pruned retinue and bureaucracies. Similarly, it is our proposal that the federating states should be reconstituted alone the recognized geopolitical zones in this country but not more than 12 states to foster economically viable entities with capacities to bring about development and competition to and among their regions. The only provisio should be that people and groups within the relevant local governments should be allowed to decide which federating units to join. Similarly and in the same vein, it is proposed that we resort to a bicameral Legislature at the centre having members who will operate on part time basis. In the first republic, many Parliamentarians were lecturers, lawyers and professionals who rushed back to their jobs after sitting. It is curious how we intend to continue with the present bogus and expensive structure without a debilitating end.
Some of the incongruities inherent in the 1999 Constitution.
A Constitution of the Federal Republic of Nigeria that vests an elected President with powers to proclaim a state of emergency in a state suspending all the legal structures of the state even at the instance of the Government of that State without the approval of the electorates of that state is incongruous. See S. 305. Under Miscellaneous Provision of the Constitution of the Federal Republic of Nigeria 1999 (As being altered)
The inappropriateness of having a centralized Police Force superintending the entire force formations across the country under Ss.214 and 215 of the constitution makes a strong case for state and community policing in a decentralized fashion for the federation of Nigeria. The same is true for the unbundling of the National Judicial Council (NJC) that oversees the issues of appointment, promotion and even discipline of all Judges of Courts of records in Nigeria. See Item 1, Third Schedule to the 1999 Constitution.
The unbundling of the Independent National Electoral Commission (INEC) merits the same adjustment and decentralization for elections into elective offices at the federating units. Each State Election Management Bodies (SEMB) presently exists in the federating units, but they are clearly not effective in relation to the crucial responsibility to midwife credible democratic forces, institutions and communities at those strategic levels of the federation. S. 55 of the 1999 Constitution displays crass insensitivity in relation to the diverse nature of Nigeria when it limits the languages in which the businesses of the National Assembly can be conducted to English, Hausa, Ibo and Yoruba as though they are the only ethnic nationalities that exist in Nigeria. That particular section is in violation of S. 42 of the Constitution frowning against discrimination on multiple grounds including ethnicity. S. 97 applicable to the State Houses of Assemblies is a better provision and more elegantly written.
Finally, we humbly proposed that for Nigeria to achieve peace, it must develop to the point where the fundamental objectives and directives principles of state policy under Chapter Two of the 1999 Constitution are promoted and made justiciable. The welfare and joy of the people of Nigeria leading to peace and harmony can only be achieved when the rights under this chapter are made justiciable contrary to S.6 (6)(c) of the Constitution of the Federal Republic of Nigeria (As Altered). It is the chapter that guarantees the rights of Nigerian to:
• Suitable and adequate shelter.
• Suitable and adequate food.
• Reasonable national minimum living wage.
• Old age care and pension.
• Unemployment benefit.
• Sick benefits and welfare of the disabled etc.
See Section 16(2) of the 1999 Constitution.
With the heightened security tension in the land, this position paper critically explained the imminent dangers that this country face without an autochthonous constitution that is people-driven, process-led in such known fashion that vests legitimacy rather them validity to the document. It acknowledged the numerous efforts made in bringing about a people’s constitution but easily identified the unfortunate alienation of the people on whose behalf previous constitutions were crafted. The paper regrets that the nation is wasting more resources and times pursuing constitutional amendments when the challenges of a dysfunctional federation within a heterogeneous entity cannot be remedied without a properly restructured polity anchored on a brand new autochthonous constitution.