• Thursday, June 13, 2024
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Nigeria needs a new constitution: Tinkering with the current one is futile

Nigeria’s constitution: Matters arising (Part 2)

The most frustrating thing about Nigeria is that it’s so sclerotic that critical change is virtually impossible. Nigeria defies every theory of institutional change.

For instance, political economists say that when a country faces an existential crisis, when it reaches a TINA moment, that is, a “There -Is-No-Alternative” moment, change is inevitable. That’s what Mancur Olson’s crisis hypothesis tells us. But existential crises or TINA moments rarely trigger radical change in Nigeria. Come what may, it’s business as usual.

Take the ongoing “constitutional review” exercise by the National Assembly. Everyone knows that the 1999 Constitution is an albatross, a millstone, around Nigeria’s ‘neck’, the main obstacle to its unity, stability, and progress. Thus, Nigeria needs a new Constitution. Yet, the so-called constitutional review exercise is intended merely to tinker at the edges of the current deeply-flawed one. According to the federal legislators, only incremental amendments are possible, a new constitution is not. They are wrong.

The history of constitution-making in Nigeria shows that virtually every Constitution since the colonial era replaced the one immediately before it. Rather than tinkering with an existing Constitution, a new one was often created.

Nigeria’s first Constitution dated back to its inception as a corporate entity. The first, the Amalgamation Constitution, came into effect on January 1, 1914. And during the colonial era, there were four other constitutions, namely: Clifford Constitution in 1922; Richards Constitution (1946); Macpherson Constitution (1951), and Lyttleton Constitution (1954). Each of these constitutions was different from the one before it.

Of course, all the colonial-era constitutions were imposed on Nigeria. But Nigeria’s 1960 Independence Constitution and the 1963 Republican Constitution were negotiated by Nigeria’s ethnic nationalities themselves.

During the debate on the Nigeria Independence Bill in the UK House of Commons on July 15, 1960, a Member of Parliament, Arthur Creech Jones, said that the 1960 Independence Constitution was “a culmination of a tremendously difficult and complex exercise in constitution-making”, adding: “It is a Constitution of great delicacy where various interests have had to be reconciled.”

The 1963 Constitution, which made Nigeria a federal republic, was also carefully negotiated and delicately put together.

But the military jettisoned the 1963 Constitution after the coup of July 1966, and, since then, made constitutions for Nigeria – from the 1979 Constitution, created by General Olusegun Obasanjo’s regime, to the current Constitution, enacted by General Abdulsalami Abubarkar’s regime before handing over to a civilian government in 1999.

Of course, all the military-era constitutions lied about their provenance and legitimacy. The preamble to the 1999 Constitution says: “We the people of the Federal Republic of Nigeria … Do hereby make, enact and give to ourselves the following Constitution.” But that’s a lie. First, “the people” didn’t make the constitution; second, the constitution is not “federal.”

Take the first point. Although the military always set up a constitutional committee led by a civilian, the emergent constitution ultimately reflected the predilections of the military leaders. For instance, General Obasanjo set up the 49-member Constitutional Drafting Committee, chaired by the legal luminary Chief Rotimi Williams, SAN, and later the Constituent Assembly, led by the renowned judge Justice Udo Udoma. Yet, the final Constitution reflected the say-so of Obasanjo and his military colleagues; it had their imprimatur.

The truth is, as the statement of the British MP about the 1960 Independence Constitution suggests, and as the making of the American Constitution in 1787 shows, a genuine people’s constitution is a product of negotiated political and constitutional settlements, of debates and political compromise, and not a closed process where the military has the final say. So, military-era constitutions cannot claim to be a product of “We the people”; and without that, they lack genuine consent, ownership, and legitimacy.

Then, take the second claim that Nigeria is a “federal” state. That, too, is a lie. It is anything but. It’s interesting that the military’s constitution-making philosophy and approach differed significantly from those of the colonialists and Nigeria’s ethnic nationalities, who always favoured ever-deepening regional autonomy within a federal union.

For instance, although the Richards Constitution of 1946 intensified regionalism, it was suspended in 1950 against a demand for greater regional autonomy. The Macpherson Constitution that replaced it in 1951 deepened regional autonomy, while the Lyttleton Constitution of 1954 firmly established the federal principle.

When Nigerian leaders took over constitutional-making, they went for federalism underpinned by strong regional governments. For instance, the 1960 independence Constitution created a federal union consisting of three regions, with each region self-governing in its own concerns. The subsequent 1963 Constitution went further; it gave the regions even more powers.

So, the 1999 Constitution is flawed in two fundamental ways. First, it lacks proper legitimacy because “We, the people” did not make it; second, it is not a federal constitution because it significantly erodes the autonomy of Nigeria’s constituent units – its core ethnic and regional foundations – and hobbles their ability to govern themselves. Every genuine federal constitution assigns to the central government only those nationally important functions that states could not handle individually. But, as the overloaded “Exclusive Legislative List” shows, the 1999 Constitution concentrates excessive powers in the hands of the central government.

Of course, when the military was in charge, they had to produce a constitution in order to transfer power to a civilian government. And they would do so on their own terms, reflecting their worldview and preferences. For instance, the military is a command-and-control institution, and in any constitution-making, they will tend towards a unitary system rather than a federal system. To ask the military not to influence a constitution they make would be to give them an excuse to stay in power. Thus, the attitude, rightly, was: Let the military make the Constitution as they liked but go.

However, once the military has handed over power to a democratically-elected government, the elected politicians must then perfect the imperfect constitution they were bequeathed. They must create a new constitution that befits a genuine democracy, that reflects the will of the people, and, thus, that has true legitimacy.

Sadly, that’s what Nigeria’s elected politicians have failed woefully to do since 1999. In 22 years of uninterrupted civil rule, they have failed to replace the deeply flawed Constitution. Why have the lawmakers not given Nigeria a new constitution that reflects its diversity and the settled will of its people for true federalism? Well, leaders of the current Senate say the legislators’ hands are tied. But how?

Recently, the Deputy Senate President, Ovie Omo-Agege, who is leading the constitutional review exercise, said that section 9 of the Constitution only allowed the National Assembly to amend and not replace it. Supporting that view, Senator Opeyemi Bamidele, chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters, said: “We cannot have a totally new Constitution because the law does not grant us the power to do that.” Really?

True, section 9 (1) stipulates the procedures for amending the Constitution, requiring a two-thirds vote in the National Assembly and approval by two-thirds of the state assemblies. But section 9(3) allows for amending section 9 itself, albeit with a higher threshold: four-fifths of 109 Senators and four-fifths of 360 members of the House of Representatives, plus two-thirds of state assemblies.

Surely, the focus of the current exercise should be to amend section 9 first to allow for a new Constitution and a referendum; then start the process of creating a new Constitution.

The barriers to restructuring Nigeria and creating a brand new Constitution are not constitutional constraints but a lack of political will. Given the imperative for a new Constitution, the elected politicians should muster the will to give Nigeria a new Constitution. Truth is, tinkering with the current Constitution is a futile and wasteful exercise.