1999 Constitution is a fraudulent document that lies against itself – Adesina

Dele Adesina, Senior Advocate of Nigeria (SAN), is a Principal Partner at Dele Adesina & Co, a legal firm with headquarters in Lagos.  In this interview with NATHANIEL AKHIGBE, he explains how the 1999 Constitution has been the bane of Nigeria’s development. Excerpts:   

Sir, Many Nigerians believe that the 1999 Constitution is at best “a fraudulent document”. Do you share that view?

The Constitution of the Federal Republic of Nigeria 1999 (as amended) was introduced through the Constitution of the Federal Republic of Nigeria Promulgation Decree No. 24 of 1999 on the 29th of May 1999. On the 18th of June 1999, I conveyed a well attended seminar, under the auspices of the Nigerian Bar Association (NBA) Ikeja branch. I was the Chairman of the branch at that time. Among the dignitaries and constitutional experts invited to the seminar were: Chief F.R.A. Williams SAN, who midwifed the 1979 Constitution; Chief Afe Babalola (SAN); Professor Itsay Sagay (SAN), Chief Wole Olanipekun (SAN), Chief Mike Ozekhome (SAN) and so many others. I remember very well that Chief F.R.A. Williams (SAN) described the Constitution as a document that lies against itself. Prof. Sagay on his part described the document as a fraud. Why did they come to these conclusions? First, you find that in the introductory passage of the Constitution, you will read “we the people of the Federal Republic Nigeria, having firmly and solemnly resolved to … do hereby make and give to ourselves the following Constitution”. The question at that seminar was where did we gather together to resolve and/or agree to the content of this document? How did we give it to ourselves? Is it Nigerians that gathered to resolve, or the Provisional Ruling Council of the Federal Military Government? Resolution simply means agreement. Yes, the Military Government set up what they called a coordinating Committee of some men and women that travelled round the country, collated some views submitted by some individuals and prepared a report for the Federal Military Government who consequent upon the report promulgated Decree No. 24 of 5th of May 1999 and attached the document that we now refer to as the Constitution. Is that the resolution of the people of Nigeria? That was why the Constitution was described as such. I think I described the Constitution as a testamentary document, something like a Will.

For me, the process of making the Constitution is faulty. It does not enjoy the authority of general acceptability of Nigerians. It has a legal legitimacy though through the promulgation of that Decree, but it lacks popular legitimacy for the simple fact that there was no referendum to ratify the Constitution.  I believe that if the process is wrong, the product cannot be right. Besides, this Constitution is essentially unitary in nature. It is a product that eminently reflected the centralised Military administration and its commanding structure. That we have had over the years, beginning effectively from January 1966, all through to 1979 and 1983 to 1999. So, this document couldn’t have been better, essentially as it was midwifed by the Military. The only thing Military understands is command. And that is a product of their training and essential feature of their profession, so you can’t blame them. The military is not gifted to administer any nation. Their job is that of protection against external aggression and internal insecurity and so on and so forth. Professor Nwabueze (SAN), has also described the Constitution as illogical. According to him, it is illogical because it is a unitary constitution that is being applied and being enforced in a Federal system of government. The question is: can you have a unitary Constitution in a Federal system of government? When you look at some characteristics of a Federal system, most of them are lacking here.

The second point is that there have been some amendments under the first, second and third alterations by previous Assembly. This three alterations affected several sections of the Constitution. We are currently embarking on yet another round of amendment thinking that these several amendments will bring it in tune with the expectation of a Federal system. But I don’t agree. Like I said earlier, if the process is wrong, the product cannot be right. Without a process there can be no progress. The process itself must be good in order to get a good product. One thousand and one amendments I believe cannot solve the problems of the 1999 Constitution. For example, are you going to amend the introduction that says we the people of Nigeria…? You cannot have the affirmation that “we the people of Nigeria … do hereby make and give to ourselves the following Constitution” without having a referendum which is absolutely an essential part in the process of making a Constitution. Are you now going to gather us together so as to retrospectively agree on this context? Somebody may say that does not matter but to me as a lawyer it matters; because if something has to form the basis of our existential agreement, we must have an input in it. So, these are the fundamental vices of this Constitution. As a proof of that over-centralisation, let me cite few examples. Section 214 of the Constitution says there shall be a Police Force in Nigeria which shall be known as the Nigeria Police Force and no other Police Force shall be established for the Federation or any part of it. In a Federal system of government? I have written several papers on this where I cited examples of the United States of America, Canada and Australia amongst others. These are federal states and they do not have a monolithic centralised Police Force system. In fact, in the US you have the Federal, you have the state; you have the Municipal and all sort of police. Even the University have its own security system. I have always said that if you want the blessings of Abraham then be prepared to do the works of Abraham. If you want a successful Federal system, do what has made the system successful in those other areas. So, whether somebody likes it or not, the evidence is all over the place that a monolithic centralised Police system is dysfunctional, ineffective and inefficient in Nigeria. We need state police to complement the efforts of the federal police. Nigeria is so big; the land space is so expansive and the population today is said to be in the region of 170-180 million people. How many policemen do we have in the Nigeria Police Force?  I doubt we have up to 400,000. Of what ratio of Police to citizen is that, about one Policeman to 450,000 citizens. Even if they are angels from heaven, how effective can they be on earth? Tell me a state today that does not have one form of informal police or the other to complement the security system of their state? Mention a state today that does not contribute equipment, vehicles and provide funds for the Police?  Lagos State I do know has a security Trust Fund for many years. If these are happening can’t we see that the states are only trying to fill the vacuum, the inadequacies, which the Police Force is, although not responsible for, but which the system has created.

Another example, look at the issue of census: in Nigeria today, under this Constitution, there is no state that can get up and say I want to conduct a census. How do you plan without reliable statistics? How do you know the number of people in your domain that you are responsible for their welfare and security when you don’t even know the number of the people? These two classical examples are there for everybody to see. There are still some other sections which are inherently offensive to effective practice and operation of true Federalism.

This now brings us to the controversial exclusive and concurrent lists; a creation of the 1999 Constitution which puts exploration of mineral resources solely in the hands of the Federal Government. What do you make of that?

Let me go back to 1954-1957. Before the 1954 Constitution was enacted, questions were sent to the different regions, even by colonial masters, asking people the kind of government they wanted: whether they want a strong centre or not, where all the decisions will be taken at the Federal level; or where some decisions will be taken at the state levels. All that led to the first Federal Constitution that we had in 1954, which became the Independence Constitution of 1960; which also became christened as the Republican Constitution of 1963. In 1954 we had 43 items in the exclusive legislative list; forty five items in the 1960 and 1963 Constitutions. Today, we have 68 items in the 1999 Constitution. Go and check those Constitutions: I grew up to see the Native Authority Police in the Western Region. I grew up to see the Western Region Court of Appeal. In the Executive arm, you have the Governors, the Commissioners. But the commissioner of Police of a state is much more powerful when it comes to enforcement of law and order because the governors these days have no control over the commissioner of police. If anybody tells you something different, it is a lie. Whatever instruction that is given by the Governor, the CP is under a duty to confirm or seek clarification from the Inspector General of Police before responding to the Governor’s instruction. This is because the entire Police Force is under the command and authority of the Inspector General of Police who is in turn an appointee of the President. This is what section 215 of the Constitution says. So how do we correct that? It was all because of this and many more that I decided to participate, representing Ekiti State in the National Political Reform Conference that was organised by the former President, Olusegun Obasanjo in 2005, where we highlighted some of these issues with special focus on decentralisation of powers from the federal to the state. But unfortunately, the report of that conference did not see the light of day. There was another conference in 2014; and again, its report is being consigned to the dustbin of history. No nation progresses like this. There is no way you can say the report of 2005 is unreliable; the report of 2014 is rubbish without looking at them and pick those ones that are good, and jettison those that are bad particularly after expending several billions of naira on these conferences. My take is that let us have a holistic replacement of the 1999 Constitution that will really and indeed address our multifarious and multidimensional problems and challenges as a nation. To answer your question directly, it is not only the mineral resources that should be out of the exclusive legislative list but many other items on the list have to go.

What do you also make of the several contradictions in the Constitution, where for instance in Section 85, it gave power to the Auditor General to audit the account of certain agencies of government, and then when you read further in sub-sections, it then states that the above Section doesn’t mean the AG can audit but can only appoint external auditors to do the job and to fix amount to be paid?    

Subsection 3 of section 85 has exempted corporations; commissions; authorities; and agencies from the work of the AG, which now appears to be limited to ministries and what have you. But some of these parastatals are closely linked with their ministries. For example, the Nigeria Port Authority (NPA) is under the Ministry of Transport. In the light of the provision of the Constitution it appears that the AG can audit the ministry of transport but he may not be able to audit the NPA. If what the drafters of the 1999 Constitution want to achieve is accountability and responsibility in government, and not just window dressing provisions, I see no reason why the AG can to say these and these are the people you can appoint as auditors; this is how much you can pay them and yet he cannot directly audit those bodies. I do not see the logic in this. These are some of the imperfections of the 1999 Constitution and there are so many like these. For instance, the Constitution established the office of the Governor and vested him with all executive powers of the state yet; the Governor does not have control over the Commissioner of Police whose duty it is to enforce the laws of that state. The legislature of the state makes laws for good governance, and maintenance of law and order of that state and thereafter depends on the Federal Government apparatus to enforce those laws. So, you are perfectly correct to say there are contradictions in the Constitution.

Now section 145 states the condition a sitting Nigerian President can be absent from work, which appears open-ended, as far as his deputy is in acting capacity as President. Going by the suspicions in some quarters over succession tussle by ethnic, religious and regional-minded politicians, is Yemi Osinbajo not just a ceremonial president who cannot wield presidential powers like hiring and firing? 

I have expressed an opinion on similar point before and I have no cause to change my opinion on the matter. First, Section 145 is open-ended; it does not stipulate how long or how short the President can stay out of the country on medical grounds. The constitutional obligation that was imposed on the President was to transmit a letter of his absence to the National Assembly and once that letter is transmitted, Section 145 automatically becomes self-executory. The Vice President then becomes the Acting President throughout the duration of the President’s absence, and until another letter is transmitted to the NASS from the President stating his arrival to assume his duties and responsibilities, the Acting President continues to function. Now, for me, the Acting President does not lack any constitutional authority to assume all presidential functions and powers of the substantive president without exception. That is what the Constitution in my own understanding says. Whatever the President can do, the Acting President can do in his acting capacity. Whatever the substantive President cannot do is the only thing the Acting President cannot do also. Before President Buhari travelled he complied with the provisions of the Constitution in that respect. There is no lacuna in government. Yes, you are correct to the extent that no maximum days of absence are stipulated. That is how the drafters of the Constitution wanted it. If they wanted to put a time frame, they would have done that. But people should know that the President having done what the Constitution says he should do, and the Vice-President having assumed full powers as Acting President as dictated by the constitution, there is no lacuna in executive administration of the state. There is no limit, unless a limit any individual may put upon himself.

According to the law, is it correct for the media aides of the President to be issuing statements on the same subject matter after the aides of the Acting President must have done so? Does it not show sign of dual presidency and of power tussle? Or is it constitutionally right?  

Well, this is a very tricky question. First, you need to know under what circumstances and for what purposes those statements were made.   For example, when the late statesman Maitama Sule died, I think Mr. President issued a statement from London after the Acting President had earlier issued his own. But the question I want to ask; please pardon me for using a question to answer your question: are those statements executive functions of the President? If they are executive functions I will say no, it is not correct for the President that is away to do so. If the Acting President has issued a statement, the President’s media team cannot issue another statement and credit it to the President that is out of the country. But in my opinion, I don’t think those statements are executive functions of the office. If somebody dies and Mr. President is physically in this country, he can issue a statement to console the family of the deceased. So also the Vice President can issue his own statement to console the same family. That is where I want us to draw the distinction. The powers provided for in Section 5 of the Constitution are the executive powers of the Federation, which are vested in the President. There can be no two Presidents discharging any of those executive functions simultaneously. I may be wrong but that is my opinion. The statements you referred to are mere occasional and or ceremonial statements. Those ceremonial statements are not executive functions under the Constitution. They should be distinguished for example from something like the appointment of a minister.

The appointment of Ibrahim Magu as chairman of the Economic and Financial Crime Commission (EFCC) by the executive and the refusal of the Senate to confirm him for the position appears to deepen the face-off between both arms of government.  What is your take from legal perspective? 

Again, I have expressed an opinion before on this issue in some national newspapers and my position remains the same. In a democracy you expect things like this; because democracy itself can be described as an act of management of crisis. It is not mechanical. Democracy thrives in an atmosphere of discussions; consultations; persuasions; debates; compromises and lobby. These are essential elements of a thriving democracy. There is no room for arm twisting of one arm of government against the other. There is even no room for an arm of government to be struggling against the other arms. To establish superiority or what? Under this Constitution we have three arms of government: the legislature, which was created by section 4; the executive, created by Section 5; and the judiciary created by Section 6. If we are to ask which arm is superior to the other? I will say of course, the Judiciary for so many reasons. It is only the Judiciary that can declare any act of both the legislature and the executive illegal and invalid on the basis of the Constitution and nothing will happen. In fact, both arms must obey the decision of the Court no matter how unpalatable. That is for the purposes of jurisprudential analysis of power equation in a constitutional democracy. But in terms of division of powers and implementation of powers, and harmonious running of government, no arm is superior to the other. The same Constitution has also fashioned out some forms of checks and balances for harmonious interplay of the three arms of government. The power of confirmation vested on the Senate is a form of check on the executive. From my own point of view and with very profound respect to the learned Professor, the Acting President and other colleagues of ours, on that side of the interpretation, I do not agree with them. In my humble opinion, the relevant section of the EFCC establishment Act that is section 2 subsection 3 is not inconsistent with Section 171 of the Constitution. More particularly, when you realise that the EFCC establishment Act first enacted in 2002 and amended in 2004 was well after the Constitution of 1999 was promulgated. I would have said that the drafters of the Constitution, deliberately, for reasons best known to them, excluded the chairmanship of the commission from being confirmed by the Senate pursuant to section 171 subsection 4 of the Constitution because the expression of one thing is the exclusion of the other. Similarly, the office of the Chairman of EFCC is also not one of the offices listed in section 171 subsection 2 (A-E) which offices do not require senate approval. Again the Maxim the expression of one thing is the exclusion of the other applies. In my opinion section 171 of the Constitution cannot resolve the controversy. Inevitably, and consequently recourse must be found in the extant provisions that established the Commission. In other words, the appointment requires the approval of the senate in accordance with section 2 subsection 3 of the Commission’s Establishment Act. The Act as a specific law with its specific provisions specifically stated that the appointment of the chairman of the Commission shall be subject to the confirmation of the Senate.  I do not see the contradiction or inconsistency in the extant provisions of both laws having regards to my argument above.

How, in your opinion, may the Executive-Legislature face-off be resolved?        

If the communication gap is bridged, the executive should go ahead and re-submit Magu’s name. Both arms of government should do the needful in a democracy, which is that of lobbying, discussions, persuasions, sufficient consultations, mutual concessions and compromises. These are inevitable actions that oil the wheel of democracy particularly when you realise that democracy is a process. Yes, there are so many others in the nation who can do the job, notwithstanding, let the Executive explain to the Senate the reasons why the Executive believes in Magu. The Senate should also tell the Executive why it thinks it is not right because of the SSS report. There is nothing that cannot be talked over in a democracy. Both parties can extract concessions in the overall public interest. My own position is do the needful, close the communication gap between the executive and the legislature and re-present Magu’s name.

Another controversial section in the 1999 Constitution which has been criticised by some Nigerians is Section 6; subsection 5, which allows the establishment of Sharia Court of Appeal. Critics wonder what Sharia is doing in a Constitution that belongs to a secular nation like Nigeria? Is this not promoting one religion above the others?    

You see, my position on this will be anchored on Sections 10 and 38 of the Constitution. Section 10 established the secularity of Nigeria as a nation while section 38 guarantees the fundamental right of freedom of religion of individuals in Nigeria. Whether Customary Court, or Sharia Court, or Canon Court, as some people are now advocating, I believe all these should be out of the Constitutional provisions. These are some of the reasons why our Constitution is unnecessarily bogus. When you compare our Constitution to America’s Constitution, where we borrowed the system we are operating today, you can get 10 of America’s Constitution from our own Constitution. So, what is Sharia doing in the Constitution? What is Customary Court doing in the Constitution? What is Canon law Court which is now being advocated by Christians doing in the Constitution? These are all personal laws and the Courts to administer them should be left entirely to the states. I believe that the law that has general application on everybody, regardless of his or her religion, or tribe, or ethnicity, should be what is contained in the Constitution. The provisions of the Constitution must be of a general application rather than being applicable to a segment of the society, by their tribe; by their ethnicity or by their religion. That is what it should be. So, whether Canon law and Sharia law, what are they doing in the Constitution? They should be out of there.