Senator David Mark, senate president, said that, his brain child, the Joint Committee on Constitution Review (“Joint Committee”), would avoid some controversial areas of the constitution this time around in its review of the 1999 Constitution. He was trying to distinguish the proposed task of the Joint Committee from previous constitution review project which was aborted by the term elongation controversy. His attempt to authenticate what is evidently another sham proves that the senate president is yet to accommodate the majority view that the constitution - root, orientation, origination, intent, contents and effects - is totally defective. Added to the obvious logistic and substantive challenges that the Joint Committee will encounter in its review task, the senate president’s position is proof that the review is a dishonest political maneuver by the ruling party; it is a design to wedge any real attempt to amend the constitution now or in the immediate future. Further, it is rather deceitful for the senate president to pretend that the Joint Committee made up of 72 or more politicians can ever achieve anything other than utter chaos attempting to review a complex body of laws of which evidently most of them have little or no understanding.
From the outset, the public rightfully suspected the review project as another self-serving claptrap by an egotistic national assembly. Unlike the senate president, the public has concluded that the unacceptable socio-political conditions in Nigeria are largely provoked by the reprehensible constitution. The public knows that a less than genuine attempt to review the constitution will only intensify the already high national schism and may lead to consequences yet unimagined. The suspicion of dishonesty is already heightened by the squabble among the Joint Committee over mundane issues of leadership, venue, retreat, and seating allowances. Beyond this disturbing development is the expectation that the Joint Committee will somehow be able to manage the confluence of its task with the ongoing mandatory legislative responsibilities of its members, most of whom chairs various House or Senate committees. Some of members of the Joint Committee have been reprimanded for perpetually struggling to meet their legislative schedules. In two years, both houses have managed to pass only a handful of insignificant pieces of legislation. Yet we suppose to believe that the Joint Committee will manage to dedicate sufficient time to review the constitution – a deliberately complex cut and paste document – within the time remaining to the next general elections. The sheer volume and complexity of the constitution are intimidating even to sophisticated scholars not to mention some legislators who, with all due respects, cannot be classified as “academically unchallenged”. Beyond the intellectual and logistical challenges, what must Nigeria expect as the substantive result of the proposed constitutional review adventure (misadventure)? What must we expect as a nation at the conclusion of the review if it ever took place?
I dare say Nigeria should not expect unadulterated substantive result from the review because the Joint Committee lacks the credibility to substantiate the task. Both Senator Mark and the Joint Committee have spent an incredible amount of time on the defensive deflecting the suspicion of term elongation as the real purpose of the review. They have been forced by public opinion to suspend presidential term as part of the agenda. And trying to deemphasize the controversial subject of term elongation in his inaugural directives to the Joint Committee, Senator Mark proposed federalism, states, and local government administration as the areas of focus needing immediate review. This development has already shattered whatever integrity that the national assembly enjoyed in creating the Joint Committee. Worse, it is demonstrably a deceptive proposal that the enumerated topics are mutually exclusive. And that is the problem. No accomplishments of the Joint Committee, if any, will be untainted, especially when it comes to its appropriated review of the contentious issue of federalism.
Even if the Joint Committee understood the term, the inclusion of federalism as part of the review exercise is probably a red herring. Beyond section (2) (2) that “Nigeria shall be a federation consisting of states and a federal capital territory,” the constitution does not prescribe “federalism” of any sort as the political structure for Nigeria. Certainly, “federalism” is one of those weird words that may “mean one thing and its opposite”. For instance, “sanction” means “to approve” and “to punish.” So does “federalism” which may be interpreted to mean “a form of government in which two or more states constitute a political unity while remaining more or less independent” or “unity that only a strong central government could provide”. The collision of both definitions can only result in a constitutional wreck as it seems. The creation of a bicameral federal legislature and the office of the president is insufficient proof of one definition, while the severely oppressive set of legislative schedules supports the other. Call it a confused constitution or a deliberate potpourri of fractions of different ideologies twisted. Nevertheless, political experts will warn against any hasty adoption of “true federalism;” it may not cure Nigeria’s political ills unless certain underlying issues are first addressed. Senator Mark was right to point to the constitutional interrelationship between the federal and state governments as the crux of federalism. But any issue remotely connected to this subject cannot be objectively addressed by the Joint Committee because of an inherent conflict of interest.
The Joint Committee is composed overwhelmingly of one party and rooted in state representation. Maintenance of that status quo is its natural disposition. It is therefore reasonable to assume that the Joint Committee will unlikely act against the interest of the majority party. Balance of power is the mainstay of the aforementioned constitutional relationship between the state and the federal government. Devolution of power therefore cannot be in the interest of the party whose majority status derived from that very imbalance of power. That crushing weight of the federal power is ingrained in an umbrella federal supremacy clause warranting the invalidation of any inconsistent state legislation. Because of the excruciating legislative preemptions, the states effectively are mere administrative extensions of the federal government. The exclusive schedule contains a comprehensive overreaching inventory of federal supremacy, including control over locally-generated revenues, making the concurrent and states’ schedules a combined useless façade of power. The states houses of assembly have remained legislatively idle for this reason. So, would the Joint Committee not be acting against the interests of the national assembly if it short circuits the predatory federal legislative powers and give more control to the states? Or would the Joint Committee willingly jeopardize national assembly privileges by conceding more fiscal control to the states? Given the history of the party in power, it is unthinkable that the Joint Committee will act against federal legislative and executive interests by increasing state powers. This area singularly represents the major constriction to Nigeria’s democracy.
Further, an effective devolution of power may require the reduction, rather than an increase in the number of states. Now, which member of the Joint Committee would volunteer his or her state for elimination if reduction in the number of states is necessary for the “true federalism” touted by the senate president? The elimination of some states will automatically extinguish legislative representation. So, who among the Joint Committee members will volunteer his or her seat for elimination? In line with its hidden purpose, the Joint Committee will likely for the creation of more states as being necessary for adequate representation at the center. But there are many other selfish incentives for the creation of more states. More states create more appointments that are political for the ruling party to occupy; meaning its enlargement and deeper entrenchment. Such recommendations and other likely substantive gaffes can only exacerbate the constitutional problems. It is for these reasons that the creation or amendment of a constitution is never a job for elected officials, who in their ordinary lives may be untaught in legal and public administration matters and whose neutrality cannot be guaranteed. Winning an election does not confer an automatic constitutional expertise; just as the ability to drive a car does not necessarily indicate an acute knowledge of the automobile engine.
Senator Mark successfully sold the Joint Committee as genuine; he rightly calculated the thrill to overshadow the underlying conspiracy to preempt a sovereign national conference; or better still, the overdue dialogue on the federal existence of Nigeria. However, regardless of what the constitution currently represents, it has not worked – and that much is conceded by Senator Mark in creating the Joint Committee. But instead of the Joint Committee, he missed a historical opportunity to provide courageous leadership by initiating an overdue analysis of the amalgamation ideology that will best serve the interest of the nation. He assumed that a jaundiced review touting “true federalism” is the answer. It is dishonest to pretend that credible constitutional amendment exercise is possible without visiting this important issue. We know monarchy and dictatorship are unequivocally impractical or unacceptable; the focus then must be on how to create a unique republican system under which all ethnic groups within the nation will co-exist without marginalization. Constitutional assemblies and review panels of the past acted against this creative approach because, like the Joint Committee, they were largely laden by ethnic, regional, and religious interests, leaving them with the consensual option of manipulating political templates of others to fit the incomparable composition and circumstances of Nigeria nation. As perhaps the most diverse nation on earth (I don’t know of any other country comprising of over 250 distinct ethnic groups), current national discontent demonstrates that it is becoming less affordable to assume that a political structure that works in other less diverse nations is a suitable model of what serves the best interest of Nigeria.
This lack of political originality is obvious in the current constitution: it is an amalgam of outlandish provisions with inconsistent objectives. The Joint Committee is fixing to maintain the same. Hear what Senator Ike Ekweremadu, Deputy Senate President and disputed Chairman of the Joint Committee, said on the constitution review, to Balulani Desai, a visiting member of the Indian Parliament: “Presently, there is a lot of advocacy for devolution of more powers to the states which we believe the present review would look at. So, we will take advantage of what has happened in other jurisdictions (emphasis mine) to see what we can produce to add value to our democracy” He was further quoted as saying that the National Assembly is willing and ready to learn from India because “we share common values of federalism.” (ThisDay Newpaper, Dec. 4, 2008). I am sure the senator would learn plenty from the Indian Constitution especially when it comes to the creation of more states, which in India, can only be proposed by the president with the consent of the member of parliament representing the area. With this approach, it is doubtful that the Joint Committee will achieve anything other than further complication by adopting unfeasible or bizarre ideas borrowed from other countries. And, it is discouraging if, as reported, the Joint Committee chairman believeds that our constitution replicates American model of “presidentialism,” whatever that means. The challenge is for the senator to take time out of his busy schedule and highlight the similarities between the Nigeria Constitution and its US counterpart beyond the creation of the office of the president and the establishment of a national bicameral legislature. Where in the US Constitution does he see any state legislative handicap, and irrational provisions such as the establishment of the Council of State or the prescription for a static number of cabinet ministers? If he, like perhaps many others in the Joint Committee, does not understand that such long-held mischaracterization collates the many appalling provisions in the constitution, then the job of reviewing the Constitution is too advanced for the Joint Committee.
Just as a sick person needs the attention of a competent medical practitioner instead of potentially fatal advice from his ignorant friends, the job of fixing the constitution must be conceded to an independent group of experts. This is approach is different from a sovereign national conference which is equally vulnerable to competing interests. The review conducted by a group of experts must be independently funded as an academic project by a disinterested entity, individual, or an NGO, and perhaps assembled in, and supported by the resources of an institution of higher learning. Unlike the Joint Committee, the group of experts will be unrestricted in its review and recommendations. I am sure Nigeria is sufficiently endowed with organizations and other entities financially capable of sponsoring such project. This group of experts will review the constitution and recommend amendments. Such recommendations may be in the nature of a substitute because the constitution is too cumbersome and intertwined for piecemeal amendments as the Joint Committee is fixing to do. The experts’ recommendations will be in the form of a report for vigorous public debate. If nothing, the report will form a platform upon which a national dialogue may be initiated, and eventually will provide a crucial tool for legislative actions by the national assembly. It is estimated that such report will be less prone to bias and adulterated interests than a politically generated one. As it currently exists, the Joint Committee is an excuse for not taking this or similar higher grounds, and that I suspect, is its real raison d’être, plus the sitting allowances, and the junkets.
Muyiwa Sobo writes from Lagos
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