Are we stuck with this Constitution? – By Sesugh Akume

There is a unanimous and growing consensus that Nigeria is not working. Whereas some are of the opinion that bad leadership is the main culprit, others say it is both bad leadership and the structure/system. They insist that even with the greatest leadership not much can be achieved under the present system which hinders, opposes, and is antithetical to progress. At the heart of this being the Constitution, we have and operate. This second view seems to be gaining wide and growing acceptance and is exemplified by the frequency by which the Constitution has been amended in the last 21 years, as virtually every National Assembly (NASS) has done so since 1999. This is not normal.

Some have said there’s no perfect Constitution anywhere, and whatever Constitution that is coming up with holes will be picked in, therefore, we should find ways to make do with what we have and make incremental changes as we move on. Others are of the view that first, this Constitution is founded on a lie with the false premise: ‘We the people do hereby make and give ourselves the following Constitution.’ When, where, how did we do so, they ask?

Second, the so-called incremental amendments are mere hacking at the leaves as against addressing core issues at the root, and at the rate gone so far in the last 2 decades with the amendments, it may take centuries to have a Constitution that bears the semblance of what truly serves the people. For this reason, it deserves a replacement.

No lesser a voice, than the deputy senate president, Ovie Omo-Agege, who is also chair of the joint ad-hoc committee chair on constitutional review for this 9th NASS has said NASS can’t replace the Constitution but can only amend it to alter some sections. In essence, we are stuck with what we presently have as a Constitution. This may have some merit, but it is not accurate.

First, it is critical to understand why the Constitution of the Federal Republic of Nigeria 1999 as is, is not only is inconsistent and contradicts itself repeatedly but is a hindrance to progress and the main culprit of our backwardness. A few illustrations should suffice:

Local governments (LGs) are key as they bring governance closer to the people, but in Nigeria, they are practically nonexistent.  After the Constitution created the local LG system (section 7) as the third (and autonomous) tier of government (s.318) to be administered by laws enacted by the state Houses of Assembly it turned around and created the State Local Government Joint Account (SLGJA) (s.162) where federal funds for LGs in each state are sent into one pool. The states in turn make obnoxious laws that give governors unfettered access and control over the funds to the detriment of the LGs. It’s part of the reason LGs are under the governors’ stranglehold, choked, and can never breathe. This brazen provision goes against the intergovernmental immunities doctrine, a principle settled in constitutional law the world over for 2 centuries that in dealings of the federal government (with others) the state need not come in and vice versa. For instance, in the federal government sending funds to support the LG system the state government need not be involved. This had been the practice in Nigeria from the beginning until the 1999 Constitution.

The US with its 50 states, for instance, has 85,000 LGs. The people are at liberty to organize and govern themselves as LGs, fully recognized. This is so because they don’t receive federal allocations (for doing anything) to run (unsustainable) LGs, and they are doing very well. Montgomery is a small LG in the state of Maryland with an annual budget of $6 billion, half of which goes to education. In essence, what one rather obscure LG spends on pre-nursery to secondary education is more than 10 times what Nigeria has budgeted for the same purpose in 2021. That budget is one-sixth of Nigeria’s for 2021. Remember, America has 85,000 of such LGs, we are not talking states of the federal government yet. We in turn have 774 of them all codified in the Constitution. This is how the Constitution enhances or hinders progress. You can’t form a local government in Nigeria without a constitutional amendment. Recall the SLGJA under the control of the emperor-governors. Do we need 774 feeding-bottle-fed LGs? Or we should revert to having autonomous LGs that thrive and pay taxes to the center as it was pre-Independence and the First Republic?

It is trite knowledge that in a democracy (or even a civilian rule as ours) there are 3 co-equal arms of government (legislature, executive, and judiciary) but in Nigeria, the judiciary is under the presidency (s.153) so is the election management body that is said to be ‘independent’ (s.153) and is expected to conduct free and fair elections. How is that possible?

It insists that there shall be only a single police force in the country (s.214) — whose function isn’t stated by the way – and forbids states from making laws pertaining to security and creating security outfits (Second Schedule Part I (45)). The result of this is there for all to see. Meanwhile, pre-Independence and in the First Republic, LGs had their own police departments, the Native Authority police.

In 1984 the Major-General Muhammadu Buhari regime ill-advisedly canceled the Lagos metroline initiated by the then Lagos state government and remains so 36 years on with the resultant traffic and chaos. There is no hope for it in another 300 years under this present Constitution, even for those who are willing and can, as railways are the exclusive preserve of the federal government (Second Schedule Part I (55)).

I have never seen a country so vulgar as to deem itself a ‘national cake’ for ‘eating’ where public office roles are seen to be for ‘sharing’ and ‘distribution’, the Constitution actually uses those words (s.14(3); Second Schedule, Part I (c) 7 and 8). A country whose focus is not patriotism, service, sacrifice for the common good, merit, productivity, competition, greatness, but rather entitlement, distribution, and sharing of offices.

The Constitution acknowledges that sovereignty belongs to the people from whom the government through it derives its powers and authority and that the people in their government shall be ensured (s.14) yet there is no room for the people to ventilate their feelings and express their thoughts on issues, save to vote every 4 years in elections conducted by an agency under the presidency. The idea that having voted in 469 (mostly self-serving) NASS members, the people have ceded their sovereignty to them to decide on all matters, thereby shutting out the people is not only an egregious assault but has no place in a constitutional democracy anywhere. Citizens usually exercise their franchise by way of referendum on critical, but this Constitution has only 2 limiting scenarios for referendum — new states creation and boundary adjustment (s.8) and recall of NASS members (s.69). It would be recalled that referenda were conducted in 1959 and 1961 for which parts of northern Cameroon joined Nigeria in the northeastern part (which includes the Mambilla Plateau area) and southern Cameroon stayed with Cameroon. So, a referendum is not strange to Nigeria.

What this NASS can do at this time is to give the people back their voice to participate in their government in any matter that concerns them, including of their choice to decide whether they want to keep patching up the Constitution every 4 years, or a fresh one they are involved in the process of making, therefore, own and has legitimacy.

The recurring questions agitating the minds of many citizens include whether we can and should sustain the 36-state structure; whether the FCT should have its own mayor, cabinet, and legislature; whether we should be self-governing at the subnational level or to continue with the feeding bottle culture depending on dwindling oil resources and the era of oil coming to an end; whether only Zamfara deserves to mine their minerals, keep the proceeds and pay taxes to the federal government or what is good for the goose is sauce for the gander; whether having a single police force in Abuja suffices; whether we want a unicameral, part-time NASS, or to keep the bicameral, full-time NASS, whether the ultra-expensive presidential system is workings or to revert to the parliamentary system? And so many such questions.

This is the view canvassed by Aare Afe Babalola, SAN the 91-year-old highly respected jurist, esteemed as a leading legal icon of his generation not only in Nigeria but globally with 6 decades at the bar, in the articles he recently wrote primarily in the Vanguard entitled ‘The National Assembly Has Powers to Replace the 1999 Constitution (1) and (2)’ published on 17 December and 24 December 2020, respectively. In this 2-part series, he sought to expatiate on the earlier widely reported news report earlier in the month entitled, Afe Babalola Seeks New Constitution for Nigeria to Overcome Challenges, published on 6 December.

Stifling people’s voices is another form of modern-day slavery. The people deserve a chance to be heard. I see no reason why this key amendment would not be made, passed, and signed into law this time, even if it is the one amendment made.

Sesugh Akume profile

Sesugh Akume, a public policy analyst from Abuja.

Twitter @sesugh_akume | Email: sesugh.akume@gmail.com.

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