With the setting up of a presidential committee on constitutional reform the campaign to review the Nigerian constitution has gained momentum. Although we are yet to see how the committee will handle this assignment, we can safely conclude that at a minimum there will be a significant review of the 1999 Constitution as amended. What is significant is a matter of debate. A columnist, writing under ‘Hardball’, in the Nation Newspaper of Wednesday, November 23, 2011, sets the tone by arguing that the term of reference given the committee by President Jonathan is not far-reaching enough. He thinks what Nigeria needs now is radical restructuring and not any tinkering at the margin.
But let’s step back. What is this fuss about constitutional review? Do we really need another review just a couple of years after the last Senate pulled through a wholesale review of the constitution? Of course, someone will argue that the constitution itself anticipates that it could be severally reviewed hence it has Sections 8 and 9 dealing with amendment to the constitution. But the little inconvenient truth in that argument is that what those sections require is amendment of a section of the constitution and not a total review of the constitution which should rightly be the responsibility of a Constitutional Review Committee duly appointed.
I am not really bothered so much about the legality of a review of the constitution by a body other than a specially appointed Constitution Review Committee as much as about the justification for the fuss about the deficiencies of the Nigerian constitutional order. Let me say upfront that I don’t agree that the 1999 Constitution is so dysfunctional that we need to urgently review it to either transform our polity or even stabilise it as is being clamoured by opposition politicians and large section of the civil society. I don’t also agree that it is the defects of our constitution that are responsible for the failure of governance in Nigeria. Therefore, constitutional review, howsoever defined, is neither so urgent nor much valuable as to warrant so much expenditure of time and resources.
Now, let me consider the arguments of the proponents of constitutional review. There are two shades of the arguments. The first, what I call the maximalist argument, believes that the Nigerian constitution is not legitimate, not being made by the people through their truly and freely elected representatives. The capital sin is that the military bequeathed the constitution. This is the sin of illegitimate progenitor. This group even discounts the right of the National Assembly to propose amendments to the constitution, arguing incredibly that because they are elected via flawed elections they don’t have the authority to remake the constitution. I am opposed to the claim that because a military administration bequeathed to us the constitution therefore it is illegitimate. The legitimacy of a constitution is a matter of complex legal and social relations. Except in Greek city-state of Athens, all the citizens never make the constitution themselves. Some sort of representation is sufficient backed up by socialised acceptance. So, this constitution is not illegitimate having been made by a legally authorised, even though morally obnoxious, military administration.
The second shade of the argument is institutional and reactive. This argument admits that the constitution is a clog on the wheel of democracy and prosperity in Nigeria and needs to be reviewed to attune to the aspirations of the people. It disjoins from the first argument in localising the reform within the institutional structure of legislature in Nigeria and also not thinking that we need so far reaching restructuring. This perspective is not acceptable to the extent that we recognise that no constitution is perfect, least of all, the 1999 Nigerian Constitution. But it goes overboard in my view, if it prioritises the review of the constitution above the remaking of politics as the solution to the development crises in the country. Failed politics rather than failed constitution better explains our malady and we ought to allocate our intervention in that light.
The campaign for constitutional review in Nigeria started earnestly with the struggles for a Sovereign National Conference in the heydays of military dictatorship. The proponents of the Sovereign National Conference were strongly convinced that the Nigerian state was logically disoriented by the twin tragedy of neo-colonialism and military rule that it does not and could not effectively promote the welfare of Nigerians. These maximalists believe that the Nigerian people needed to come together through elected representatives of ethnic and social groups to refashion the normative and structural basis of Nigeria. Please note that the catalysts for this movement were the hijack of the Nigerian state by the militarists and the absence of civil space for social reconstruction of the nation-state. Furthermore, this movement was inspired and sustained by the globalisation of democracy and self-determination after the collapse of the Cold War. At that time, the US led a huge democratisation project in Africa and the Third World whose objectives included the use of national conferences and constitution-making to oust dictators and enthrone liberal democracy. It is remarkable that since the battle over communism has been decisively won, the project of constitution-making as a prelude to democratisation has ended (interestingly, in the age of Arab Spring no one is asking to write new constitutions for ‘democratic’ Arab countries).
Now that we have elected representatives, the campaign for sovereign national conference in different guises has not subsided. What is driving latter-day constitutionalists is the failure of ‘democratic’ politics to return real values to the people. Poverty continues to grow as a result of poor infrastructure and violence and impunity marches on furiously as public leadership fails to restore hope, competence and responsibility. How does these relate to the provisions of the Nigerian constitution?
Constitutionalists hark on the notion of ‘true federalism’. This concept dating from the First Republic now symbolises everything that is wrong with the polity in Nigeria. There is general insecurity in Nigeria. The explanation of the ‘federalists’ is that the federal government has centralised law enforcement and until we have state police, we will continue to live in extreme insecurity. My Personal Assistant puts this argument with dramatic pungency when he related the story of a ‘Youth Corper’ from one of the Southwest states who served in Bayelsa. This young man impregnated more than a dozen teenage Bayelsans and sneaked away to his village somewhere in Ekiti. These ladies are now hopeless victims of a misnomer federal project called the National Youth Service Corps. The police have no answer to this brutal criminality. The argument is that but for the lack of true federalism, the pregnancies would have been avoided.
The argument is that this is not just a simple matter of rampant amorousness. This is impunity underwritten by a total lack of commitment and identification to the place of primary assignment. This is taken further to scandalise the constitutional order. The constitution fails to pay attention to the peculiarities of the different peoples that make up the country and continue to centralise governance. If we have a truly federal (federal is defined to mean the weakening of the federal government) we will have the proximity and incentive to control the excesses of governance. If the policeman or woman comes from a village in Bayelsa, he or she will be better motivated to hunt down the ‘bloody corper’.
The question is it true that our constitution centralises governance? I think not. What is the evidence that our constitutional framework is not federal enough? Let take administration of justice as an example. Today, impunity and injustice is rampant in Nigeria. This has resulted in high incidence of violent crimes. Proponents of ‘true federalism’ argue that the centralisation of law enforcement mechanisms, especially the Police, is responsible for the culture of impunity and the social institution of violence and crime. The judiciary is the backstop of law enforcement. The country allows the state houses of assembly the prerogatives to establish high courts for the administration of civil and criminal justice. It is the governor who appoints the Chief Judge and other judges of the court. And all these fail to effectively administer justice in the states. There is also the Customary Court, that veritable institution of decentralisation and subsidiarity. How come violence continues to ravage the rural areas in Nigeria in spite of customary courts managed by states and local governments?
Let’s take another example from the administration of economic welfare. The Nigerian constitution shares resources and responsibility for the administration of economic welfare of the Nigerian citizen fairly between states and the centre. State governments have clearly defined responsibilities to promote the social and economic welfare of their people. None of the states is providing comprehensive social security net for its citizens, even as the federal government has none. So, the failure of economic welfare in these states is essentially the failure of politics and not constitutional disablement.
I can go on and on. But the point is that our constitution has sufficient normative and structural federalism to allow states to transform the social and economic realities of their states. Of course, some of the provisions of the constitution need to be amended as we advance in the learning curve of constitutional governance. But that does not warrant the scapegoating of the constitution for what is clearly a failure of politics.
My answer to the constitutionalist is simple: the answer is not a better constitution but rather a more practiced and better theorised constitution. For in reality a constitutional order is not determined by the text of a constitution but by theory and practice. Justice Learned of US Supreme Court called it ‘the livid constitution’. Harvard Professor and most eminent scholar of US Constitution, Larry Tribe, in his book, The Invisible Constitution, argues that the whole constitutional governance in the US has become an inspiration to the world does not rest upon what the text of what the US Constitution says, but what statesmen and theorists assumed it meant. It is the ‘invisible constitution’ and not the textual constitution that has defined constitutional governance in the US.
What do I say to those who think the cause of our underdevelopment is that the federal power is too extensive? Well, I disagree again. Yes, some of the activities of the federal government may be better handled by the states. States may need more responsibilities to match their financial resources. But I think the federal power is not too extensive. It is rather too weak and limited. Don’t think in terms of extraction and rent-seeking. Think in terms of agenda-setting and institutionalisation of norms of engagement. Is the federal government really extending its leadership across nooks and crannies of the country? Is the federal government shaping outcomes in those states through the institutionalisation of normative leadership?
I believe that the cause of our underdevelopment is not the extension of federal power but the lack of extensive federalisation of norms. The federal government ought to federalise the norms of development and transformation throughout Nigeria by both coercive and non-coercive means. Just as nation-states needs the international community to universalise the norms of civility and development in spite of their sovereignty, domestic states will need the guidance of federal power to effectively perform its core responsibility. This failure to federalise norms of development and civility is the real constraints to development in Nigeria. And this failure is a political, not a textual failure.
There is no discounting that we may need to change a few provisions in our constitution. We also need to devolve power to different levels of government. This is what has been incorporated in European thought as the principle of subsidiarity and decentralisation. We need to have level of governance closest to society to handle issues that concerns the people. But before decentralisation can lead to positive outcomes, we should have extensive federalisation of norms that protect dignity and promote prosperity.
So, there is need to proceed with tinkering with the constitution with tempered zeal. It is not the quality of the text that matters. It is the quality of federal intervention. It is not reducing the power of the federal government that is the key to transformation. It is enhancing the influence of the federal government to shape development agenda across Nigerian society.
•Okpoka is a lawyer and scholar in Abuja