January 16, 2009
Before I give my brief thoughts on Constitutionalism and the Re-Invention of the Nigerian State, there are two things that I must do. The first, is a happy one – to express my own sense of honour at being invited to deliver a lecture on the occasion of the 5th Chief Gani Fawehinmi, the stormy petrel of Nigerian Law and a moral compass for Nigerian public life. I say this not because I have always agreed with Gani – on the contrary, I too have received my public rebuke from him and I fall into the category of those who might not be considered worthy to march with him in the struggle for Nigeria’s redemption because, I must confess, would have a great deal of hesitation about signing up to die for a cause. But Gani is one of those people who have this effect – that if you find yourself in some doubt about a particular course of action, where the moral landscape is not as clear as it might be – then you ask yourself: How would I feel if Gani were to hear this about me? We can often square things with our own consciences. But can we square it with Gani?The second is less happy, in fact not happy at all. I am sure that many of us are deeply concerned about the tremendous suffering being caused by the conflict in Gaza. We are particularly concerned because unlike almost every other conflict where the victims have been able to flee to places of refuge, the victims are imprisoned, and a fellow-African country has shut its borders against them. One tries to understand – Palestinians still living in refugee camps 60 years after they were driven from their homes to create the state of Israel and the activities of the Interahamwe in the refugee camps established inside the borders of the Democratic Republic of Congo in the wake of the Rwanda massacres and coming to power of its present government – these are hardly incentives to do the humanitarian thing. Still, to deny refuge to those trapped in Gaza seems somehow … un-African. In any event, I don’t believe that expression of the collective concern – or even outrage – about that war and its effects felt by many Nigerians should be left to be expressed only by Muslims, or to Muslims in Kano. Rather, if our concern arises from our common humanity, then we ought not to let issues of race, religion, colour, political persuasion and whose-fault-it-is-ism, prevent us from giving voice to that concern.
Therefore, Mr. Chairman, and particularly because of the deafening silence from our own government, I would like to ask those who do feel concern, who do feel outrage, to rise for a moment’s silence, in solidarity with the victims of the present war in Gaza.
Pause.
May Justice and Peace come to that deeply troubled part of the world.
When one contemplates problems such as those in the Middle East, it is easy to get really exasperated with Nigeria and Nigerians. Out there, in the Middle East, the problems are so enormous, so seemingly intractable (after all, the Palestinians aren’t going to just vanish, nor are the Israelis going to simply disappear).
But here in Nigeria, with everything apparently in our favour, we seem to take a perverse delight in refusing to follow a sensible path that would more than provide for the needs of everybody. We seem to prefer to do the wrong thing in order to grasp at the most temporary, illusory and mundane gains. A few examples from our recent past are enough to highlight this tendency; and it is against this tendency that we have to interrogate the issue of whether Constitutionalism – tinkering with, amending or completely replacing 1999 Constitution of the Federal Republic of Nigeria – can indeed lead to the re-invention of the Nigerian State.
The period since the death of Sani Abacha in June 1998 provides numerous examples of the ‘What is the worst thing that we can possibly do in the circumstances?’ preference in Nigeria, and if there is time, I will return to these later. But of course, it is the June 12th, 1993 Presidential election that remains the classic example of this insistence on adopting the least wise, least beneficial and least effective option. (Since this is an NBA forum, I have tried to use moderate language. But actually, the words that really spring to mind are ‘most idiotic, harmful and pointless’.) If Ibrahim Babangida had had sufficient personality to understand that acceptance and enforcement at that time, of that June 12th 1993 result was not only what was demanded by the Constitution that he had brought about, and that his own insistence that this country should follow that Constitution would not only have strengthened that Constitution, but also, that such enforcement would have made it more likely that when the time came, the victor in that contest would also have to bow to the demands of that Constitution, imagine how different our nation’s history might have been. Certainly we would not have to be listening to lectures about how much more political maturity they have shown in Ghana, and what lessons we need to learn from Ghana, or Sierra Leone, and so on.
Babangida’s political experimentation, with its enforced 2-party formula, was hardly the most democratic answer to Nigeria’s problems, but it was certainly an attempt to re-invent the Nigerian State by means of its Constitution.
From another perspective, the Third Republic could also be seen as an attempt by the military interlopers to make up for what might have been a natural political development into two ideology-based parties, as appeared to be emerging in Nigeria during the Second Republic, even despite the 1983 ‘moonslide’ – the massive electoral fraud that led to a ‘victory’ by the ruling National Party of Nigeria. Perhaps Babangida felt that his proposed Third Republic two-party state could make up artificially for the ten year interruption that the military coup of 31st December 1983 had caused in Nigeria’s political development.
Artificial political engineering to be sure, but that in itself ought not to have condemned it to failure. A farmer or a horticulturalist may interfere with or hasten evolution by crossing a peach with a plum to produce a nectarine, but once it ‘takes’, the planted seed of that nectarine can produce nectarines in the way that nature intended. So the artificial nature of the engineering that produced the Third Republic’s two parties need not necessarily have condemned the Third Republic to the disaster that Babangida precipitated when he cancelled the declaration of the results of the June 12th 1993 election.
Indeed, the (Babangida’s) forced marriage that produced strange bedfellows allowed Nigeria – long before Barack Obama was out of political short knickers (so to speak) – to vote for a candidate across the country without regard to factors such as religion or ethnic origin (which is our own equivalent of the race factor in the United States), or deliberately refusing to allow those factors to dictate our electoral choices. If Babangida had been less cowardly, less short-sighted and less selfish, the political engineering might indeed have ‘taken’. And like the seed of the nectarine, it might indeed have produced its own flowering and fruit ‘naturally’, its own re-invention of a Nigerian state that would actually mean something to its people.
It is impossible to know what might have been Nigeria’s political development had the military not illegally seized power at the end of 1983, thereby illegally truncating the Second Republic. The judicial process by which the ‘moonslide’ of 1983 was being challenged offered only patchy correction to the gross fraud that had been perpetrated, particularly in the Court of Appeal. (At the Court of Appeal in Jos, the lead judgment offered this gem:
“A Respondent who fails to file an Answer neither admits nor denies anything. He simply fails to join issues.”
The Court of Appeal then went on to review the copious evidence that had, despite the failure of the FEDECO-declared winner to file any defence, been led, and proceeded to reverse the decision of the Election Tribunal to give judgment in favour of the FEDECO-declared winner. The Buhari-Idiagbon coup denied the Supreme Court the opportunity of correcting that most egregious error.)
The Second Republic that was terminated in December 1983 had been ushered in on October 1st 1979 with the adoption of the 1979 Constitution. This presented itself as the fruit of the deliberations of a ‘Constituent Assembly’ which had been convened by the Obasanjo administration, and indeed, Justice Udo Udoma, who had chaired the ‘confab’ (as it was popularly called) insisted that it was, on the whole, a genuine expression of the wishes and desires of ‘We the people’ of Nigeria, ‘military intermeddlesomeness notwithstanding’.
But in fact, even without that ‘intermeddlesomeness’, the 1979 Constitution was a reflection – not of the wishes and desires of the Nigerian people – but of the wishes and desires of the military dictatorship that ruled Nigeria at the time. Recall that the Constituent Assembly was convened to discuss a draft Constitution which had already been prepared. The document was the product of the so-called ’50 Wise Men’: the Constitution Drafting Committee chaired by Chief Rotimi Williams. The draft produced by the CDC represented the most massive re-invention of the Nigerian State that the country has witnessed in its short history.
Instead of a parliamentary system, and a country where the regions (or states – at any rate, the federating units) had a great deal of autonomy, their own governments and more particularly, their own Constitutions, we now had a dressed up unitary system under which everything revolved around the Federal Government headed by an executive President. Before 1979, or rather, up to the time of the January 1966 military coup, the only general election – involving the direct votes of the people – that Nigeria’s head of government had to go through was the one in his local federal constituency. He emerged as Prime Minister through the decision of his party or similarly elected Members of Parliament, primus inter pares, as it were. After 1979, Nigeria had a President elected by the whole country, who was expected to form his government – not from elected representatives – but from his own choice of whoever he wanted and could get past the Senate confirmation process. A similar re-engineering occurred at the level of the federating units. The chief executive of each state was no longer a member of the legislature, selected by the ruling party, but must secure the votes of the registered voters in that state.
In theory, this ought to have resulted in a more representative democracy, and there are numerous points on each side in favour of the parliamentary v. presidential systems of government (the one is much less costly, the other allowed the gross discrimination against women enshrined in the Federal and Northern Region Constitutions to be thrown into the dustbin of history), but we must admit that the shift from the one to the other represented a radical departure: a massive re-invention of the Nigerian State.
Nigerians have never been told where the instructions to the CDC came from, or why the CDC jettisoned the parliamentary system for the presidential and almost completely emasculated the federating units, but if we remember that Nigeria had emerged from a civil war which the military apparently believed to have been facilitated by the strength and independence of the regions (even if these were not the actual causes of the civil war) you will understand why I suggest that the 1979 Constitution, which did away with much of that strength and independence, was a reflection of the wishes and desires of the ruling military dictators, rather than of the Nigerian people. The Constituent Assembly was only allowed to discuss the draft presented to it. There was no room for it to come up with anything completely different, or which was not based on that draft.
Our present 1999 Constitution is a bastardized version of that 1979 one, and the defects in the current constitutional arrangement became clear when we had a former military dictator operating the Constitution, as we did from 1999 to 2007. State governors were in effect, little better than local satraps dependent on and beholden to the central government, even where they belonged to different parties. The same applied to almost every other element of government. Why else is it now being suggested that the funding of the electoral management body should be a first line charge on the Federation Account? The defects remain apparent even now that we do not have a former military dictator ordering everybody else about. Indeed, the degeneration in so many aspects of our national life since May 2007 is testimony to what can happen when the enormous powers conferred on the central executive government by the 1999 Constitution are wielded by someone for whom the governance of the Nigerian state is apparently not a first priority. That is the only interpretation that I can put on the hopes expressed by members of his party in the wake of the Supreme Court’s dismissal of the appeals against his election, that President Umaru Yar’Adua would ‘now’ be able to concentrate on governance and moving the country forward. To which I can only say – Yeah, right.)
The tragedy for Nigeria is that so heedless of the enormous shift that the 1979 Constitution wrought in our nation state are we, that even now, the most energetic and vocal political movements across the country are those which demand the creation of yet more states, even though it must be recognised that it will be almost impossible to satisfy the competing demands and the ridiculously mundane reasons behind them (e.g. ‘Igbos deserve the same number of states as other major ethnic groups’, or ‘Create a new state so that we don’t have a contest among traditional rulers in the state about who should be top dog).
And what about this current Constitution that came into force with the birth of the Third Republic in May 1999? Did it offer any opportunities for the re-invention of the Nigerian State? Certainly the outgoing military regime threw away its own opportunities to re-engineer the nation. Instead of releasing and installing M.K.O. Abiola when it came to power following the death of Sani Abacha, it prevaricated, keeping Abiola from his own supporters, but allowing access to people like former UN Secretary-General Kofi Annan who came out to tell Nigerians that it was Abiola’s supporters who were the problem, and that Abiola himself only wanted to take care of his health and (so it seemed) to abandon his presidential mandate. While they were prevaricating and procrastinating, Abiola died in prison. The Abubakar Abdulsalami regime then first considered whether it could get away with simply completing the discredited Abacha transition, but after a series of consultations across the nation, realised that it would have to start afresh.
Well … almost.
What the Abdulsalami regime did was to dust off the aborted Babangida and 1979 Constitutions, and – after pretending to have fine-tuned them under a committee headed by Supreme Court Justice Niki Tobi – then went ahead to make a mish-mash of clumsy amendments, some of which revealed the incompetence of those who added them, but which had as their general objective the removal of as many vestiges of independence in the states, and gathering as much power into the hands of the Federal Government as possible. The fraudulent result is the Constitution of the Federal Republic of Nigeria 1999.
Like our current President, Umaru Yar’Adua, who came to power appearing to have recognised that the process by which he emerged was grossly compromised (and therefore promising Nigerians electoral reform, setting up committees thereto), so President Olusegun Obasanjo also appeared to have recognised that there were serious flaws in the 1999 Constitution under which he was exercising power, and set up a series of committees, assemblies and so on, under guise of seeking to amend the Constitution, and to make it more the product of the Nigerian people. Since however, the successive bodies that were supposed to perform these feats were composed of mostly hand-picked members, it is difficult to see how they were supposed to achieve the allegedly sought-for improvement in status as the people’s document.
In any event, those attempts all foundered and came to naught when even the basic corrections that needed to be made had to be jettisoned in order not to provide a Trojan Horse under cover of which the tenure elongation (or ‘third term’) proposal might be smuggled into the middle of Nigeria’s body politic.
Now, we find ourselves once again contemplating constitutional reform. The main process is supposed to be in the hands of the National Assembly, which has established a joint committee of the Senate and the House of Representatives, but the President’s Electoral Reform Committee has submitted a report that makes its own proposals for amending certain election-related sections of the Constitution.
What is the likelihood that either of these paths will lead to the re-invention of the Nigerian State? In my view, small.
At best, the objective is to correct some of the blunders and anomalies that litter the 1999 Constitution. Certainly there is little ambition to diminish the power of the central government. Even bodies that are supposed to exist for the entire Federation remain entirely subject to the dictates of whoever has been able to emerge as President. When you have an Inspector-General of Police who is appointed by the President, where will his loyalty lie? To the nation – the Federal Republic of Nigeria – or to the President? The same can be said of so many other bodies that are supposed to be created for the entire Federation, the ‘Federal Executive Bodies listed under Section 153 of the Constitution. With the possible exception of the Federal Civil Service Commission (Section 153(1)(d)), none of those bodies – the Code of Conduct Bureau, the Council of State, the Federal Character Commission, the Federal Judicial Service Commission, the Independent National Electoral Commission, the National Defence Council, the National Economic Council, the National Judicial Council, the National Population Commission, the National Security Council, the Nigeria Police Council, the Police Service Commission and the Revenue Mobilisation Allocation and Fiscal Commission – ought to be under the thumb of the President. But that is mostly the case where the membership is not composed of those there by virtue of offices that they hold or held in the past.
(Example, the Police Service Commission is a body established for the Federation, but the Act establishing it obliges it to accept directives from the President.) The same defect characterises other offices. At the end of the day, the Accountant-General of the Federation never behaves as anything other than the Accountant-General of the Federal Government, as the government of Lagos State found out to its cost during the local government creation dispute. Even now, if the President decides that the funds paid into the Federation Account are not to be distributed, or that only part is to be distributed, it is the President that the Accountant-General will obey, whatever the revenue allocation laws prescribe!
It is possible that if the states pay sufficient attention, they may be able to correct some of these anomalies. But without organising themselves, and understanding what is in their common interest, so that they are able to not only reject amendments that do not suit them, but also – by strategic use of their power to reject amendments – to bargain for amendments that favour restoration of the proper balance between the centre and the federating units (and it must be recognised that this is something that State Governors, who, like the President, have no constitutional role in the amendment process, will also have to take an interest in.
As it is however, the amendment process is to start in the National Assembly, not in the states, the allegedly federating units. Indeed, the only job of the states is that when the National Assembly has accepted a constitutional amendment by a two thirds majority in each states, then each state gets to say (by a simple majority) whether they agree or not. If two thirds of them agree, the amendment is passed, as provided by section 9 of the 1999 Constitution.
9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.
(2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.
(3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.
(4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.
As if to underline how irrelevant they are in the scheme of things, the states have no power to initiate constitutional amendments themselves, or even to amend the proposed amendments sent to them by the National Assembly. They can only either accept, or reject. Well, I have already noted that the most energetic efforts seem to be those for the creation of yet more of these increasingly irrelevant states!
Nobody who hopes for more autonomy for the states, a higher status for the states, should expect a great deal from an amendment process that relegates them in the way that the amendment section of the 1999 Constitution appears to.
There is no doubt that within the conventional amendment process, there is much that can be done to improve the 1999 Constitution, and it may be that all Nigerians can hope for are amendments that will correct it within its own existing parameters, but we should not expect anything radical or particularly people-oriented.
But in an ideal world, apart from necessary election-related changes, I would not even ask the National Assembly to do much on Constitutional amendment, even if there had not been severe doubts about the credibility of the elections in which so many of them came to power. Rather, I would say that perhaps the only thing that the National Assembly ought to do if it were really resolved to re-invent the Nigerian State, would be to amend the amendment section (section 9) of the Constitution, transferring the process out of the National Assembly to a democratically elected constituent assembly where the Nigerian people are truly represented, and which could then set about designing a genuine Constitution. But I’m not holding my breath.
CONSTITUTIONALISM AND THE RE-INVENTION
OF THE
NIGERIAN STATE.
Paper delivered by
AYO OBE
at the
Nigerian Bar Association, Ikeja Branch
5th Annual Gani Fawehinmi Lecture
15th January 2009
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