Another Round of Constitutional Amendment

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Monday Discourse

The National Assembly has embarked on another round of amendments to the 1999 Constitution, but despite previous alterations, good governance remains elusive, writes Shola Oyeyipo

Obviously, many things are wrong with the nation’s constitution, but many more are even wrong with those who operate it.

In Search of a Perfect Constitution

While the National Assembly is eager and in hurry to‎ amend the constitution, it has  done little or nothing to ‎reform the minds of the operators of the constitution including its members. Except those who operate the constitution decide to do that which is right, no amount of amendments will make the constitution a perfect document.

‎But here, we are, the National Assembly is on track to amend the constitution again. The one before it spent billions on the same exercise only for the then President, Dr Goodluck Jonathan to decline assent. The matter ended at the Supreme Court. No one knows for sure how much this current exercise will cost, but you won’t be wrong if you put the cost of the review in billions.

Good Reasons to Amend

No doubt those championing the amendments have a good intention. What with the multiplicity of challenges facing the country. Some of these include devolution of power, resource control, the haphazard structural composition of the constituent nationalities that make up the country and the sustained agitation for restructuring.

These issues and many others are considered by analysts as responsible for the delicate level of peace in the country and the main prescription is that Nigeria needs a new constitution. Hence, the unending clamour for the implementation of the recommendations of the 2014 national conference by some Nigerians. Similarly, the present constitution was largely written by the military. The question has always been, when will Nigeria have a constitution that will be truly made by the people?

In the midst of the quest for a more acceptable constitution, the two chambers of the National Assembly, in January 2016, inaugurated separate special ad-hoc committees on the review of the constitution.

Among others, the committees have to consider items in the aborted fourth alteration bill started by the seventh assembly. 

In order to avoid mistakes of the past, the review is being done piecemeal as each section or issue is considered separately. The last assembly lost an opportunity to push some amendments through after Goodluck Jonathan refused to assent to it because of some contentious sections therein. Although the former president did not have issues with all the amendments, he could not pick and choose because all the amendments were contained in a single document. 

All bills seeking to amend the constitution have been referred to these committees after its second reading on the floor of the Senate and the House of Representatives between January to December 2016.

The sixth assembly (2007-2011) had enacted the first, second and third alterations to the constitution.

Is it Self-serving?

However, one of the areas of concern at the moment is that the current amendment appears to be a quest by the National Assembly to wrestle powers from the executive. The legislature appears to be seeking equal constitutional power with the executive as the National Assembly seeks to alter certain provisions of the constitution that whittle down executive powers and subsequently boost legislative powers.

The Deputy Senate President and Chairman, Senate Committee on review of the 1999 Constitution, Senator Ike Ekweremadu and his House of Representatives counterpart, Hon. Yusuf Lasun, had the opportunity to shed more lights on the review at the opening session of the working retreat of the joint constitutional amendment committee of the Senate and the House Representatives held in Lagos between Friday 14 and Saturday 15.

According to him, the constitutional amendment being carried out will be a clear departure from the past amendments. He assured Nigerians that all the sections of the constitution to be amended would be presented in separate bills and not in single document for speedy passage and assent by the president.

“Base on our experience of the last exercise, we have decided to break this particular one into separate bills and separate issues. And we hope that by this process we can be assured that at least 90 per cent of the bills and issues raised will ultimately be assented to. Our belief is that this exercise will be concluded before the 2019 general elections process commences. We also believe that the presence of our assembly brothers and sisters will help to expedite this process,” Ekweremadu said.

Lasun, who is the Deputy Speaker of the House of Representatives is equally optimistic that something tangible will come out of the ongoing exercise. He noted that the method being adopted by the committee on review of the constitution, would lead to a smooth amendment of the constitution.

Lasun said: “We have departed greatly from the way we used to do it in the past. The current exercise will be done in a manner that we will present those sections of the constitution we want to amend in separate bills so that it will not be in a single document. Whoever that is going to accept it at the end of the day as the President of Nigeria will take each bill on its merit so that we don’t throw away the baby and the bath water.

“That is the beauty of the method we have introduced to the current constitutional amendment process. And I know that base on that with assurances from the executive arm of government, whatever we are able to achieve after the result must have come back from the houses of assembly, is not going to be in vain. That is a unique thing we have done in the process.”

If the assurances by the duo and others is anything to go by, then Nigerians can be looking forward to significant amendments to the constitution, but the question is, what and what would be amended? Another issue is whether or not the executive will ascent to the bills, but what is sure is that the lawmakers are determined to play their own part.

 A Plethora of Expectations 

Whatever the scepticisms are, not a few number of Nigerians expect some unique changes to result from the ongoing process. For instance, Lagos State Governor, Mr. Akinwunmi Ambode, while declaring the retreat open, spoke the minds of many Nigerians.

He implored the lawmakers to critically look at the exclusive list and devolution of powers, the Land Use Act, state police, sharing of allocations among the three tiers of government and other issues that usually generate controversy between the federal and states as contained in the 1999 constitution.

He said: “The defining feature of federalism is the autonomy and recognition of the separateness and independence of each government that makes up the federation. We believe that the principle of appropriateness should guide the sharing of powers between the federal and state governments. Our political experience and long era of military rule has resulted in the exclusive legislative list being tilted heavily in favour of the federal government at the expense of the state governments.

“The effect is that whilst the states are precluded from performing several important constitutional responsibilities, the Federal Government is equally unable to function effectively as it holds legislative and executive powers on matters of local concern which over-stretch its administrative and supervisory abilities.

“The current revenue allocation formula by which the Federal Government takes as much as 52.68 per cent of centrally-collected revenues in the Federation Account, leaving the states and local governments with 26.72 per cent and 20.60 per cent respectively has created a glaring and unacceptable imbalance in the financial resources of the three tiers of government.

“The sharing formula should be limited to federal and state governments. Since local governments are to come under the purview of the states, allocations to them should be shared to states as they can have as many local governments as they wish. The 774 formula is inequitable.

“We also strongly posit that Lagos State be granted a special status in the proposed constitutional amendment being the former federal capital territory of Nigeria, the economic and commercial nerve centre of the nation, taking into cognisance of the high population density and continuous influx of people into it.”

Senate Minority Leader, Senator Godswill Akpabio, also has expectations from the ongoing review. He attributed the series of agitations in Nigeria to the absence of true federal system. He suggested that there was a need to reduce the power and resources going to the federal government at the expense of state and local government development. 

“From an individual point of view, I have always believed that most of the agitations across the country are because of the nature of the federal system, which for me is not really federal in nature. I believe that we more or less inherited a unitary system of government as a result of the 35 years of military regime. And that is the reality on ground. And what that means is that more power and resources belong to the Federal Government and states are now salary paying centres.

“We need to unbundle the federal government. We need to shorten the numbers of things the federal government takes on because they don’t have the capacity to handle the things they have lumped on themselves in the first instance and that is what we are intending to do here.

“Because of the number of parastatals and agencies, the Federal Government now has to do 78 per cent of its resources going into recurrent expenses and less than 21 per cent in capital expenses. You cannot put something on nothing and expect it to stand. It is a sad thing that if we don’t unbundle the Federal Government; reduce the weight on the Federal Government and at the same time reduce the resources that goes into Federal Government and reduce the recurrent expenses at the federal level, we can never have infrastructure and without infrastructure, we can never have industrialisation and that is why this exercise is important.”

Akpabio also hinted at the possibility of the National Assembly considering some of the recommendations of the 2014 National Conference report if formally presented to it before the conclusion of the ongoing amendment of the 1999 constitution.

“The 2014 National Conference may not have a place in the ongoing constitutional amendment process because it has not been formally presented to the parliament. I am talking in terms of the House of Representatives and the Senate. But if they do come, we will look at those things. The amendment of the constitution is a continuous exercise. The journey of a mile begins with a step and if the report of the 2014 National Conference comes, we will look at it.

“I think we will get to a point when we can have true federalism. And if we get to that point, it means every states will be struggling to bring something on the table and also struggles to maintain itself; otherwise they will resort to salary paying centres alone. And the greatest thing in life today is that no country can claim to be truly great unless that country can feed itself. So any state that is not capable of feeding its citizen cannot be a state,” Akpabio said. 

At the conclusion of the retreat, Ekweremadu said about 23 separate bills to be presented to the entire National Assembly for consideration were ready. He said the decision to separate the bills was to avoid a situation where the entire amendment would be thrown out because of one or two of the proposed amendments.   

“We have broken all the issues into specific bills. We have looked at about 23 separate bills with separate issues. The idea is to ensure that by the time we vote, each of them succeeds or fails on its own. And we conclude the work and send it to the house to approve and we will return it to the National Assembly; then we will collate and ensure that the provisions of the constitution have been fulfilled regarding the alteration and we will send it to the president for his assent. And the president will decide which one to assent or not to assent.

“The implication therefore is that if he assents some, then those one become another part of the constitution. And the one he refuses to assent, then we might decide whether to veto it. So, we want each of them to have a separate life on its own. And this is based on our own experience in the last exercise where everything was in one single bill and when the president withheld his assent, all of them collapsed. This is just an improvement on what we did last time. It is something we innovated based on our experience in the last exercise,” he said.

He listed among other things that the committee had looked at “Some specific issues like the time time frame within which a governor or president will be able to assent to a bill. If you look at our constitution, I think Section 58, if you pass a bill, you need to send it to the president for his assent and he has to assent it within 30 days. But the law did not state what will happen if after 30 days he fails to assent to it. So, we have introduced a time frame base on the provisions of the American constitution. 

“In the America constitution, if you send a bill to the president and he does not sign it within 14 days, it automatically becomes law because we believe that within 14 days, the president would have made up his mind to assent or not. Now, we have also increased the threshold to 30 days. So, if the president refuses to sign or withholds his assent within 30 days and has not made return to the National Assembly; that is, if he keeps the bill; he refuses to sign it or brings it back after 30 days, it becomes automatic law.

“The other issue is the time frame within which the president can authorise expenditure from the revenue fund of the federation or state as the case may be in the case of governors where they have to pass appropriation bills. The argument is that the constitution, as it is today, if budget had not been passed, the president or governor can authorise expenditure up to six months into the year. We feel that is too long because the problem there is that that is why the executive will not bring the budget on time, because they believe that the previous budget was not quickly dispensed with. 

“And so, the National Assembly take its own time, now there will be the grace of up to three months because you cannot operate the previous budget beyond three months of the year. With that the executive will now be compelled to bring the budget beyond three months into the year and the National Assembly will now be compelled to pass the budget not beyond the three months into the year. 

“We also tried to withdraw some powers from the exclusive list to the concurrent list. You know we have been talking about the restructuring of Nigeria. One of the components of restructuring is that they are saying that there too much power in the hands of the federal government and we need to strip some of them from the federal government, so what we have done is to look at the nitty gritty issue where some of the items which they actually need will be removed from the exclusive list to the concurrent list where the federal and the states can make laws regarding some of those items. 

“So, things like railways will have to be moved to the concurrent list. The idea is that states can build railways within their states and then a couple of states can then decide to build railways across their states. The federal government can also be building railways across the country and make policy around it. That is why we move it to the concurrent list so that both the states and the federal government can make law to guide it. 

“On the issue of labour,  there was argument that each state should be able to decide its minimum wage, that there should be minimum wage for both the public sector and private sector, that is to say that if it is N5000, don’t pay any person less than N5000 because they can be increased. That is to say if Lagos has more money they can pay beyond the minimum wage. All those who don’t have money cannot pay below the minimum wage, no matter how poor they are. So, in that way we have a minimum standard for workers in Nigeria.

“We also looked at the removal of the Joint local government account. The challenge there has been how do you take care of the issues of teacher salaries because it is from that joint local government – state account that primary school teachers’ salaries are paid. So, we wanted to be sure that if we remove the joint local government- state account, we will not jeopardise the payment of teacher salaries. So that is a very contentious issue, so we said we have to do further consultation with the National Union of Teachers (NUT) and other stakeholders before we can take a decision on that to be sure that we don’t create more problems when we are trying to solve an existing problem. So, that is not part of what we are going to present to the National Assembly when we get back,” he added.

Ekweremadu commended the efforts of his colleague, expressing hope that the bill see the light of the day before electioneering campaigns resume, saying “We believe we have done sufficient work. This is an incremental approach that we have adopted in the amendment of the constitution. So, what we are saying therefore is that after we have finished with this, if we still have more time before election issues come up otherwise maybe the next assembly will decide what to do.

“But what we plan to do is that over the next one week, we should have this laid before the National Assembly and then before we go for our holidays on the July 27at the National Assembly; hopefully we will vote on it and we will send it to the state assemblies and we are going to meet with the leadership of the state assemblies so that we can agree on when we will be able to vote on each of the items and give us their own reports.

“The idea is that we want to ensure that we finish the process of this constitutional amendment before the end of 2017 so that it would not be bugged down by election issues once we get to 2018, so, everything “being equal, before the end of 2017, we would have finished with what we have done so that people can focus on elections.

“Let me say that all that we have said here are all going to be recommendations to the National assembly. So, nothing is final. So, we are going to still debate them at the National Assembly and then we will vote on each of the items. So, unless any of them scales through the threshold required by the constitution. We are going to vote and ensure that each of them gets at least two-third votes of the members of the Senate and House of Representatives. It is the items that scales through that requirement that will be sent to the state House of Assemblies and in the House of Assemblies we are going to get a simple majority in two-third of the states. So, each of the items will still have to go through such success in at least 24 states before it emerges as addition to the constitution.”

Amendments Don’t Go Far Enough

Most of the major proponents of total restructuring of Nigeria and advocates of the implementation of the recommendations of the 2014 National Conference, are still largely unconvinced that the review is capable of making any meaningful change in the Nigerian structural imbalance.

For instance, the National Publicity Secretary, Afenifere, Mr. Yinka Odumakin believes that the National Assembly needs to make tangible amendments to be able to meet the demands of Nigerians for restructuring. 

“We hope they are able to make far-reaching amendments. It is not the one where they will be changing the comas and the full stops. If they are not able to make far-reaching amendments, it will just be an exercise in futility and one that will not meet the yearning of Nigerians for true federalism. So, they should not be talking about all those political things. They should not be talking about the age to contest election. They should leave all those ones and go to the fundamentals,” Odumakin said.

Former National Secretary, Labour Party and founder, Egalitarian Africa, Dr. Kayode Ajulo does not even see any reason why the lawmakers should be embarking on retreats without going to their people to really know what changes they want in the constitution.

“They (the lawmakers) are being uncharitable to Nigerians. They have turned constitutional amendment to music chair. It is like an annual ritual in the sense that they will raise hope that major and surgical amendments would be made but in the end it will be only one or two. Which retreat are they holding in Lagos? Instead of going to their constituencies. What they are doing is mere jamboree.

“They should go to their governors, their traditional rulers and their people to ask what changes they really want. It is not to go and see one or two people in Lagos. They are turning it to disappointment. This is not how America does constitution amendment. We have turned this one to jamboree. The recommendation of the 2014 National Conference is a template they can easily adopt, ” Ajulo contended.