Needed: A Brand New Constitution

Malachy Ugwummadu argues that the constitution sought to be amended is both a lie and a fraud

The continued amendments of the Constitution of the Federal Republic of Nigeria 1999 (as already altered) will be endless for as long as the legitimacy of the constitution itself is not established. The only way to bring about a legitimate constitution of the people is to institute a process-led effort targeted at the people of this country in their original ethnic nationalities, professional entities, socio-cultural affiliations, youth and gender groupings, persons living with disabilities, workers and even faith-based associations, etc. The notion and practice of constitutional amendment presuppose that the document sought to be amended is legitimate. We miss the point when we proceed on this premise and will continue to expend the scares resources and precious time of the country by merely producing a valid constitution without the requisite legitimacy because the constitution sought to be amended is both a lie and a fraud. Thus, the foundation to build on does not exist. Unfortunately, it appears that the National Assembly at the dawn of the 4th Republic in 1999, through their successive Deputy Senate Presidents have remained adamant in perpetuating these wasteful exercises from Messrs. Ibrahim Mantu to Ike Ekweremadu and now Ovie Omo-Agege.

For a constitution to be legitimate it must emanate from the people who will, in turn, have ownership of it and defend it. Thus, the repeated voyage of seasonal constitutional amendments merely papers over the fundamental flaws inherent in our grundnorm thereby divesting it of the people’s ownership even if it pretentiously acclaims so in its preamble. Yet in the same introduction, the contradiction is laid bare when it affirms itself as DECREE NO 24 of 1999 foreclosing every debate that this is not a people’s constitution. The implication of this is that it contradicts the provision of S. 14(2)(a) which posits that “sovereignty belongs to the people of Nigeria from whom through this constitution derives all its powers and authority.”

The 1996 Constitution of South Africa, for instance, presents an ideal constitution making process that vests legitimacy as opposed to validity on a constitutional document. The preamble to the constitution traces the historical journey of the country up to that moment when it affirmed that the citizens have enacted for themselves a people’s constitution. It highlights the major turning points in the trajectory of their experiences as a country which consciously struggled towards nationhood. To guarantee that legitimacy, deriving from the participation of the people of South Africa, the draft Constitution was massively circulated to the constituting ethnic groups and translated into their respective local languages in the preceding years before it was promulgated. Adequate advocacy on the content of the document was carried out in a manner that gave everyone and groups an opportunity to understand, contribute and develop a sense of ownership over the constitution. This can also be said of the 1995 Constitution of Uganda, that of Eritrea, and even the 1994 Ethiopian Constitution, all within the African Continent.

Between 1999 and 2018, there have been four different amendments in the following orders:
One, on July 16th 2010, the Constitution of the Federal Republic of Nigeria 1999 was altered for the first time. There were series of amendments therein but S.14 altering original S.145(1) stood out to deal with the constitutional requirement of the President to transmit power once he is leaving office temporally or unable to perform the functions of his office. It was further provided in S. 145(2) that if the President fails or is unable to transmit power within 21 days, the National Assembly shall, by simple majority resolution mandate the Vice President to perform the functions of the office of the President as Acting President until he notifies the President of the Senate and Speaker of the House of Representatives that he is now available to resume his functions as President.

Two, on November 29th, 2010 (barely four months after, the same National Assembly came up with yet another set of alterations essentially targeted at the time frame within which INEC shall conduct elections into the respective elective offices in the country and the determination of election petitions. It is instructive to note that some of the alterations in this second amendment actually amended provisions of the first alteration and not the substantive provisions which underscores the haste and imprudence on the part of the legislators.
Three, on 4th March, 2011, the 1999 Constitution was further amended essentially to expand the Jurisdiction of the National Industrial Court and make it a court of record.

Finally, in 2018, the fourth alteration to the 1999 Constitution focused on the age qualifications for elective officers as well as financial autonomy to the Legislature across the tiers of government.
It should be observed that in all of these amendments embarked upon, very little, if any touched on the crucial needs for structural reordering of Nigeria through a fresh constitutional arrangement including the vexed issues of devolution of power, decentralized (state) policing and judicial system, independence of the Judicial and Legislative arms of government, autonomy of the local government, citizenship, enforcement and justiciability of socioeconomic rights enshrined under Chapter Two of the Constitution and even resource control, etc.

To what extent, therefore, would issues of age qualifications for elective officers, transmission of written declarations by the President to the leadership of the National Assembly, or time frame within which elections are conducted and disputed in election tribunals or even the expansion of the jurisdiction of the National Industrial Court address the fundamental question of constitutional and structural reforms in Nigeria? In fact, you would recall that in some of the previous exercises, certain areas including the unity and corporate existence of Nigeria were declared “non-negotiable” and could not be discussed. In other instances and at different times, the inordinate ambitions of late Gen. Sani Abacha and Olusegun Obasanjo completely compromised those efforts. In the end, it is important to note that what is required is too fundamental for the business of legislation and law making but a fresh social engineering by the peoples of this great country in determining the basis of their continued coexistence.

Prior to the foregoing efforts, the Nigerian people have been largely alienated from the processes of previous constitutional arrangements that it had. The first major constitutional order was the 1922 Clifford’s Constitution. It was the first constitutional arrangement by which the right of Nigerians to participate in their affairs was recognized albeit in a circumscribed manner and over limited subjects. In no practical way however, were the people of Nigeria instrumental to the making of that constitution. It was simply given by the colonial masters.

Sir Arthur Richard’s Constitution of 1946 effectively divided this country into three regions of the North, West and East and laid the foundation for federalism in Nigeria. It was no better than the Clifford’s Constitution being largely the product of British colonial masters to the Nigerian people.
Sir John Macpherson’s Constitution of 1951 enhanced greater participation of Nigerians in their own affairs through layers of constitutional structures including bicameral legislatures in the Northern and Western regions. Each of the Regions had the executive bodies while the Governor still retained his veto powers notwithstanding that there was an unprecedented processes of consultation with the people of Nigeria before coming into being of this constitution.

Whereas regionalism and federalism berthed with the 1951 Macpherson’s Constitution, it did very little to create and provide both the institutional and leadership structures to deal with those political expansion leading to the crisis of the following years. The then British Secretary of State for the Colonies, Oliver Lyttleton rose to the occasion, provided the needed political leadership and created the necessary platform for Nigeria politicians and technocrats to attend the London Conference in 1953 culminating in the 1954 Lyttleton Constitution.

The Lyttleton Constitution of 1954 essentially established the regional governments as independent tiers of government away from the Central Government in relation to their executive and legislative powers. Besides, Lagos was effectively made the Federal Capital Territory distinct from the Western Region. Similarly, Nigerian Judiciary was created along regional lines such that each region had and maintained its judicial arm up to appellate courts. No doubt, it was the Lyttleton’s Constitution that first operationalised the federal structure in Nigeria.

Eventually and at independence in 1960, Nigeria was granted political independence as a sovereign state under the 1960 Independent Constitution which provided for a parliamentary system of government, three regions, bicameral legislative institutions both at the federal and regional levels. The legislative power of the country was delineated into three categories contained in the exclusive, concurrent and residual lists. Although independent yet, the British Monarch was still recognized by the same constitution as the Head of State with powers to appoint a resident agent known as the Governor General to exercise executive powers on her behalf while the Prime Minister elected by the federal parliament acted as the Head of the Federal Executive Council. The same constitution reserved the final judicial authority with the British Queen in England at the Privy Council instead of the Federal Supreme Court. With this arrangement, the purported independence of Nigeria as a sovereign state was heavily compromised. Certainly, this could not have been all that our founding fathers fought for, to be bound by a constitution that alienated their sovereignty and suspended their rights.

Essentially, it was these anomalies that the 1963 Republican Constitution addressed and effectively cured by establishing a properly constituted Parliamentary system of government which replaced the appointee of the Queen to a President and a Prime Minister elected directly by members of the Nigerians federal Legislature in the same way that the Federal Supreme Court became the final appellate judicial authority over any person or matter in Nigeria.

In the end, it is easy to appreciate that despite the incremental progress and concessions made within the time under review over the forgoing constitutions, it is obvious that all the constitutional developments were without serious inputs of the Nigerian people on whose behalf the various documents were produced. It is to be further understood that even when greater participation in the affairs of Nigerians was encouraged through the constitutions starting with the 1946 Richard’s constitution, it was apparent that the British Colonial Masters literally bequeathed those documents to us and left intact certain delegitimizing clauses that underscored their continued domination in the affairs of Nigeria and over Nigerians.

Thus, if in 2021, we still have and operate a constitution drawn by a few selected number of soldiers without the authority, consent and imprimatur of the Nigerian people whom it was made for, such a document must be jettisoned for lacking in constitutional integrity and legitimacy. It makes sense to dispute the basis of accepting such documents as our grundnorm considering the foregoing submissions made. Yet, we must proceed to articulate are positions preparatory to a properly constituted process for an autochthonous constitution.

It is our further proposal that the Government of the Federal Republic of Nigeria could send an executive bill to the National Assembly for an Act to Enact a Constitution for the Federal Republic of Nigeria or the National Assembly itself can initiate such a bill setting out the modalities for the convocation of the people’s conference with a view to addressing the following areas: Identify all the relevant and critical peoples of this country to participate and be represented therein; Specify the broad areas and issues for consideration; Provide the necessary legal framework for the processes, procedure and proceedings and prescribe possible time frame within which to conclude the exercise.

But very importantly, the legislation must necessarily provide that the outcome of the deliberations, resolutions must be returned to the Nigerian people through a referendum or plebiscite for final endorsement.
––Excerpts from a paper delivered by Ugwummadu, lawyer and human rights activist