A Constitution Review Like No Other

18 Nov 2012

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Public session on the review of 1999 constitution in Jos

With rampant complaints about imperfections in the Nigerian constitution, and the notion that it is a military imposition, the National Assembly has begun an unprecedented process of trying to give the people a constitution they can call their own. Vincent Obia looks at the first steps in the process

Nigeria has witnessed an epidemic of grievances about its structure and operation since the return to civil rule in 1999. The history of the country has, of course, been described as the history of strained union, dating back to the amalgamation of disparate peoples in 1914 by the British colonialists. But 16 years of autocracy during the country’s longest military interregnum seemed to set a higher tone for agitations at the dawn of democracy in 1999.

The 1999 Constitution, which was handed down by the departing military, has been criticised, especially, among civil society, as replete with grave imperfections. Its preamble, “We the people of the Federal Republic of Nigeria…Do hereby make, enact and give to ourselves the following constitution…” is believed to be a wrong premise. Many argue that the people never really sat, outside the dictatorial tone of the military era, to freely give themselves the constitution.  But the National Assembly has embarked on a course of action that it says is meant to change some of the negative notions about the constitution and raise its moral tone.

Public Session
In an unprecedented move, the National Assembly has chosen open sessions at the constituency level as part of the constitution amendment process. The aim, it said, is to make the process all-encompassing.

“For long, our people have seen the Nigerian constitution as a document for the political elite, used in Abuja and state capitals. The connection of the Nigerian people with, and their ownership of the constitution have been very tenuous; knowledge of the constitution has been vague, and its content a mystery to Nigerians,” Deputy Speaker of the House of Representatives Emeka Ihedioha, who is chairman of the House Ad-hoc Committee on Constitution Review, said on November 8 during the flag off of the lower chamber’s constituency discussions, which it tagged people’s public sessions.

Deputy Senate President Ike Ekweremadu said at the commencement of the Senate’s public sessions, “I enjoin Nigerians to come out en mass to make their voices heard, rest assured that their views and submissions will count as always. We will continue to count on all Nigerians to build the country of our dreams through constitution reforms.”

The House of Representatives held its public sessions in the 360 federal constituencies across the country on November 10, while the scheduled public hearings by the Senate held at six zonal centres nationwide on November 15 and 16. For the North-central, it held in Makurdi; North-east, Gombe; and North-west, Sokoto. The South-east public session took place in Enugu; South-south, Calabar; and South-west, Lagos.

The public sessions focused on 43 priority areas, though, the National Assembly said that did not foreclose the canvassing of other issues.
According to Ekweremadu, the Senate received 241 memoranda – apart from the ones it inherited from the sixth Senate – including 56 requests for state creation.

Besides state creation, the other issues at the top of the agenda in the ongoing constitution amendment include state police, local government autonomy (possible abolition of the state/local government joint account), devolution of powers, constitutional recognition for the six geopolitical zones, independence of the states Houses of Assembly, and power of the traditional institutions.

But stakeholders raised also other issues, including campaign donations, internal democracy in political parties, how to develop lobbying in the country, provision for referendum in constitution amendment, constitutional recognition for the Freedom of Information Act, autonomy for the public media, residence and indigeneship, women’s rights, elimination of discrimination against women, creation of the office of First Lady, and removal of age criteria for elections.

The legislators were given seven days from the date of the public sessions to submit their reports for collation.
In line with the template from the National Assembly, the legislators were merely facilitators of the public sessions, where constituents were allowed to air their views on the aspects of the constitution marked for possible review. Voice votes were taken and members were expected to return with the attendance lists, video recording, and minutes of the public sessions. These were, apparently, meant as confirmation that the sessions actually took place and that legislators did not just gather friends and associates to take decisions on behalf of their constituents.

In practice, however, reports from across the country hardly indicated any divergence between the conclusions brought back from the public sessions and the geopolitical perspectives long held by the legislators and other members of the political class, which had been in the public domain.

Geopolitical Outlook
In Akwa Ibom State, the majority opinion favoured devolution of powers and local government autonomy. The people rejected state police and constitutional recognition of the six geopolitical zones. On fiscal federalism, the state agreed that the federal government should control the oil, gas and solid mineral resources and give 50 percent to the producing states under the derivation principle.
The state rejected rotation of executive offices, saying it should be an intra-party affair. They agreed on a single term of six years for executive positions.

On residency and indigeneship, the people accepted that political appointments should be based on indigeneship of states while non-indigenes could also be considered for certain positions.

In Rivers State, there was a huge interest in the public sessions, as constituents turned out in their numbers for the occasion. But the most spectacular seemed to be the one in Ikwerre/Emohua federal constituency, chaired by the Chief Medical Director of the University of Port Harcourt Teaching Hospital, Professor Aaron Ojule, where about 4, 000 people turned out for the exercise. Member for the constituency in the House of Representatives, Chief Andrew Uchendu, had earlier set up a steering committee which mobilised the people for the exercise.

The popular opinion among the Rivers constituents was in favour of autonomy of the Houses of Assembly and local governments, retention of indigeneship, removal of immunity clause, and rotation of the presidency and governorship among geopolitical zones and senatorial districts, respectively, and creation of states to make for equality of the six geopolitical zones. They also voted for an increment in the derivation percentage.

But the people rejected the creation of state police, independent candidates, and local government/state joint accounts, among others.
The popular opinions at the sessions in Rivers and Akwa Ibom states largely represent the views of constituents of the South-south states.

The public sessions in Osun State came out with decisions advocating elevation of the current six geopolitical zones to the status of federating units, a return to regionalism, and devolution of powers to the regions as the federating units. The people also advocated reduction of the powers of the federal government in favour of the federating units.

They kicked against the creation of more states, but rather demanded that the existing states should be synergised into regions or zones that would allow them to tap each other’s resources and strength for faster growth.

Attorney-General of the state and Commissioner for Justice, Barrister Wale Afolabi, submitted a memorandum on behalf of the state at the Ikirun public session, organised by the House of Representatives member for Ifelodun/Odo-Otin/Boluwaduro federal Constituency of Osun State, Mr. Adeyinka Ajayi.

According to the memorandum, “more powers should be taken away from the centre to the federating units. That only matters bordering on the collective interest of the generality of Nigerians like foreign affairs, defence, currency, among others, should be left with the central government.”

It added, “Each region, when constitutionally recognised, should be allowed to make and have its own constitution.”
The views expressed in Osun State reflect the popular feelings of the South-west regarding the Nigerian federation.

But in the South-east, which has for long endured the inequality of having the least number of states among the six geopolitical zones, the major demand was state creation. They demanded that one more state, at least, should be created in the region to bring the number of states in the zone to six – the number in all the geopolitical zones, except North-west that has seven.
In all the constituencies in the South-east, there was virtually no dissenting voice on the state creation issue, which has generated a lot of passion among the people.

Other issues that enjoyed massive support of the people in Abia State include fiscal federalism, right of Nigerians to become indigenes of areas where they have resided for a long period of time, and the removal of immunity for the president, vice-president, governor, deputy governor, except for civil cases.

The voting pattern also showed a broad consensus on the need to strengthen the local government system, as the people unanimously voted in favour of all the issues listed to make the third tier of government independent and strong enough to meet the yearnings of the people. The issues included abrogation of the state/local government joint account, constitutional provision of legislative list, denial of revenue allocation to unelected councils, defined tenure for council chairmen/councillors, and abolition of  state electoral bodies.

However, contrary to the position of the South-east Governors Forum, the issue of state police was rejected by the people. Other issues that were surprisingly rejected included reverting Nigeria to the parliamentary system of government, abolition of bi-cameral National Assembly, voting right for Nigerians in the Diaspora and the inclusion of the six geopolitical zones as a tier of government.

In Enugu State, the turnout was impressive from the constituencies, namely, Enugu North/South, Nkanu East/west, Udenu/Igboeze North, Nsukka/Igboeze South, Enugu East/Isi-Uzo, Uzo-Uwani/Igboetiti, Awgu/Aninri/Oji-river and Udi/Ezeagu federal constituencies, as religious leaders, traditional rulers, political office holders and, indeed, the people came out in their numbers for the exercise.

The people of Enugu State voted in favour of state creation, retention of the two terms of four years each for the president and governors – instead of the proposed single term of five or six years – amendment to make the immunity provision for the president and governors as well vice president and deputy governors to cover only civil proceedings.

They opposed state police and voted against the scraping of the State Independent Electoral Commissions.  But they supported the suggestion that the Houses of Assembly should be granted financial autonomy, like the National Assembly.

In Kaduna State, North-west geopolitical zone, there was massive support in favour of financial autonomy for Houses of Assembly, abolition of joint state/local government account, defined tenure for local government chairman/councillors, two-term tenure for the president and governors, denial of revenue to unelected local government chairmen/councillors, abolition of state electoral commissions, and independent candidacy for elections, among others.
But they rejected state police and rotational presidency.

In Kano State, North-west, the people rejected calls for state police, creation of more states, and rotational presidency. They voted in favour of local government autonomy, scrapping of the state electoral commissions to allow the Independent National Electoral Commission conduct all elections in the country from the local government to the federal level.

The public sessions were not without incidents. The member representing Gwale federal constituency of Kano State, Yushari Bashir Galadanci, was almost lynched by at his constituency’s public session by a mob alleged to be protesting his poor representation. He was attacked as he came to the venue of the session by a crowd chanting “Ba ma yi,” meaning we are not supporting. One account said Galadanci sped off on sighting the mob surging towards him as he tried to enter the venue. But another report said he was beaten almost to coma before some elders at the scene rescued him.

In Enugu East senatorial zone, the public session was surprisingly stopped by the police and the chairman of Nkanu West council area, Ekene Okenwa. The police, reportedly, told the organiser of the session, and senator for the zone, Gilbert Nnaji, that they were acting on “orders from above.”

Enugu East senatorial district is home to Senator Jim Nwobodo, who was a senator between 1999 and 2003; former Senate President Ken Nnamani, who served from 2003-2007; former governor of Enugu State, Dr. Chimaroke Nnamani, who served between 2007 and 2011.
Governor Sullivan Chime was widely believed to be behind the incident.

Thousands of Nnaji’s constituents who had gathered at the Nkanu West local government headquarters, venue of the exercise, were chased away few minutes after the arrival of the senator by a detachment of regular and armed mobile police officers led by the Divisional Police Officer for Nkanu West, CSP Sampson Ihuaenyi.

Nnaji, who had arrived at the venue of the much publicised event by midday in company of the member representing Enugu North and South federal constituency, Prince Offor Chukwuegbo, and his Isiuzo/Enugu East federal constituency counterpart, Ambassador Kinsley Ebenyi, expressed surprise at the development.

There were also objections to the choice of public sessions elected by the National Assembly as a way to commence the constitution amendment process. The Nigerian Bar Association suggested a referendum as a process for the amendment. But both chambers of the National Assembly opposed the proposal, saying the constitution does not make it part of the constitution amendment process. Tambuwal said, “The fact is that it is not available to us as an option for now. However, we accept the proposal, the inclusion of referendum in our constitution review process.”

The legislators insisted that section 9 of the constitution gives them absolute right to choose the way to get information for the amendment. A member of the lower chamber’s constitution review committee, Ibrahim Tukur El-sudi, quoted a 1964 ruling of the Supreme Court in a case between the Attorney General of Eastern Nigeria and Attorney General of the Federation, reported in 1964, All Nigeria Law Reports, to buttress the point.

It reads, while “the court has jurisdiction in certain circumstances to declare that what parliament has done is unconstitutional, it has no jurisdiction to dictate to parliament what material it is to take into consideration in a exercising its power to amend the constitution.”
But experts believe that while the constitution gives the legislature the power to amend the constitution, nothing in the law precludes the use of referendum as a method of gathering information for the amendment. The legislators could as well have chosen referendum instead of the public sessions they elected, observers say.

Besides, some think that the idea of putting the whole constitution up for amendment makes the process unwieldy.
Former NBA president Olisa Agbakoba had suggested a piecemeal approach that would concentrate on few aspects of the constitution at a time. Chairman, senate committee on solid minerals, and former governor of Nasarawa State, Abdullahi Adamu, believes the 43 areas of focus in the current amendment process are too much.
Some observers have queried the wisdom in the decision of the National Assembly to take on the entire constitution when the country is not in a national conference. 

The choice of the public sessions by the National Assembly, it does seem, may be a way of circumventing the growing pressure for a national conference. There have been clamour for a sovereign national conference to resolve some of the fundamental troubles of the Nigerian nation. The unprecedented inclusion of public sessions as a process of constitution amendment seems just the political elite’s way of skirting the issue. But time will tell how much the current strategy would achieve.  

• Additional reporting by Christopher Isiguzo (Enugu), Okon Bassey (Uyo), John Shiklam (Kaduna), Emmanuel Ugwu (Umuahia), Ibrahim Shuaibu (Kano), Ernest Chinwo (Port Harcourt), and Yinka Kolawole (Osogbo).

Tags: Constitution Review, Featured, Nigeria, Politics

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