From Decree 24 to Democratic Fragility: Rethinking Nigeria’s Flawed Constitution 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Even though the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) is meant to be the symbol of democracy in Nigeria, the one that supposedly transformed Nigeria from a military dictatorship into a democratic State, it appears that it hasn’t had the desired effect at all. Is this because the Constitution  is simply Decree/Promulgation Act No. 24 of 1999, and it is therefore, jinxed as a military contraption? In Awguna v AGF & Anor (1995) LPELR-258 (SC) per Anthony Ikechukwu Iguh, JSC, the Supreme Court held inter alia that “in a military regime, Decrees are the supreme law of the land, and all other laws including the Constitution are inferior thereto”. Or because it is a document fraught with imperfections? Or that, even if it is a perfect document, promoting equity, equality, justice and fairness as it claims to do, Nigerian so-called elites/leaders are  corrupt, ill-equipped, and  simply autocratic in nature, plagued with the sit-tight syndrome (a recent example of this being the Senate leadership’s attempt to amend the Standing Orders, to exclude others from vying for Principal Offices, thereby leaving themselves, the incumbents, in an advantageous position), and/or dynastic tendencies, only wanting to leave the throne when they die, some even setting the stage for their children to succeed them, also taking advantage of the flaws in the Constitution to misrule? Or a combination of all these factors? Or why has Nigeria turned out to be how it is today, 27 years into the Fourth Republic, particularly in such a modern age where everything is at everybody’s fingertips, so much so that there’s really no excuse for failure or lack of knowledge? 

How can it be that there are so few positives in this democratic dispensation of the last 27 years, such as the telecoms revolution, uninterrupted ‘democracy’ and a measure of freedom of expression – see Section 39(1) of the Constitution? 

Let’s examine the aforementioned options, to determine how we got here. 

Military Contraption 

The Constitution refers to itself as a Promulgation Act, which is a Decree that brings in another law into force. The  Constitution may not truly be a Constitution, if we go by the definition in Awguna v AGF & Anor (Supra), or by the fact that it wasn’t drawn on the basis of the will of Nigerians/Referendum, or by the fact that it wasn’t enacted by a Legislature, but by the Military Junta of General Abdulsalam Abubakar and the Provisional Ruling Council which brought the document into effect. Though this may bring the issue of its legitimacy into question, I don’t think the origin of the Constitution and its ambitious/false statement, “We the people…..” in the Preamble, mean that the document is doomed, nor does it mean that it is wholly responsible for where Nigeria is today. Its operation/implementation, appears to be a large chunk of the problem.

Some Imperfections in the Constitution 

It appears that a good number of the provisions of the Constitution may be acceptable, though many still need to be totally redrawn, as this may very well be part of the reason for Nigeria’s less than satisfactory performance as a nation. While the Constitution mentions that it is of the ‘Federal’ Republic of Nigeria, starting from  Section 3 -7 thereof, which seek to devolve powers on different levels of Government, from Federal to State to Local Government, to those sections that provide for State Executives, State Legislatures and State Judiciaries, their  funding and other matters related thereto, there are other provisions that belie this so-called Federalism, and instead, promote a Unitary type of system which has resulted in a strong Federal centre and a weaker State/Local level – Unitary Federalism or Pseudo/Centralised Federalism, as such an arrangement is referred to. Countries such as India, Malaysia and maybe South Africa, are somewhat Quasi-Federal, while USA and Canada are better examples of true Federalism. The Constitution presents the facade of a democratic face, when in truth, it allows power to be concentrated at the centre, interestingly giving power to a group, and constitutionally too. 

Two of some of the provisions of the Constitution that are said to promote Unitary Federalism in Nigeria are Section 214(1) (allowing for only one Nigeria Police Force) and Section 44 (3) and Item 39 on the Exclusive Legislative List, which place mining and minerals including oil fields, oil mining, and natural gas, in the hands of the Federal Government. The States are not in control of their security – see Section 14(2)(b) of the Constitution, and are also restricted from controlling their own resources to create wealth and realise the economic objectives set in Section 16 of the Constitution, as their mineral resources are vested in the Federal Government of Nigeria (FGN) and controlled by the it, with only 13% derivation going to the State where such minerals are harnessed from – see Section 44(3) of the Constitution. Its almost like saying that all Lawyers cannot own law books, or if they do, they must be deposited at the Supreme Court library in Abuja, where they must go in order to use their books to prepare for their cases, and only for a limited number of hours! All Lawyers must apply to the Supreme Court to use their own books, others also have access to their books, and the Apex Court decides when they can be used. 

While true Federalism promotes unity in diversity, strong institutions, economic competition and growth among the various groups, Unitary Federalism such as what obtains in Nigeria, has resulted in politics being turned into almost an all or nothing game, where those at the centre enjoy most of the control, and others complain of marginalisation. During the Jonathan administration, it was South South; Buhari, Northernisation, and now, Yorubanisation. The lack of economic growth has led to deep poverty, and an unprecedented level of criminality, while the allegations of marginalisation have resulted in secessionist movements, some of which have turned violent. Have the imperfections in constitutional provisions contributed to the problems of Nigeria? Definitely. 

Another example of negative consequences of constitutional provisions in our polity, is Section 318 of the Constitution which sets the bar of educational qualifications for office so low, except for the Attorneys-General and Judicial Officers, that it has further weakened Nigeria’s institutions, as the major office holders do not require more than a Primary School Leaving Certificate (PSLC) to serve in their positions. Some poorly educated office holders do not even  understand their roles, let alone know what they are doing. 

Section 318 tells a blatant lie by equating a PSLC, with attending Secondary School for 5/6 years or obtaining a Secondary School Certificate (SSC) after completing Secondary School, or a Grade II Teacher’s Certificate. Even though the PSLC requires at least 10 years acceptable service, training/courses and ability to read/write English to INEC’s satisfaction (by the way, INEC isn’t an Examination Board, but an Election Commission and therefore, cannot be the agency to certify literacy levels), in short, the PSLC is deemed to be what it is not. In Orji v Dorji Textile Mills (Nig) Ltd (2009) LPELR-2766 (SC) per Niki Tobi, JSC, the Supreme Court held inter alia that to ‘deem’ “….means to treat a thing as being something that it is not, or as possessing certain qualities that it does not possess. It is a formal word often used in legislation, to create legal fictions….The deeming provision is intended to enlarge the meaning of a particular word….When a person, for example, is deemed to be something, the only meaning possible is that whereas, he is not in reality that something”. 

The enlargement of SSC to include PSLCs, is one of the most ridiculous and ludicrous suppositions in the Constitution. We all know that when we left Primary School, we spent a good 5 years in Secondary School before we sat for the WAEC examination, and obtained our SSCs. How then can the PSLC be equated with the SSC or attending Secondary School up to SSC level, or a Grade II Teacher’s Certificate, even with work experience? Formal education in specific areas, is quite different from work experience in other areas. This makes the Constitution a sham Constitution in more ways than one, though not necessarily rendering it invalid or wholly defective. 

Corruption 

Although Section 15(3) of the Constitution mandates the State to abolish all corrupt practices and abuse of power, Nigeria has for several decades, operated in a system that encourages, and has almost institutionalised corruption, directly contradicting the provisions of Section 16(1)(a), (b), (2)(b), (c) & (d) of the Constitution, which require the State to harness and distribute the nation’s resources properly and efficiently, for the maximum welfare and happiness of all Nigerians, and the common good, nor are workers paid a reasonable minimum living wage. Instead, wealth is concentrated in the hands of few individuals, politicians and groups. 

Apart from corruption in leadership and high places, workers can no longer meet their commitments, as their wages have been eroded by inflation and devaluation of the Naira. The Bible, states in Proverbs 6:30: “People do not despise a thief if he steals to satisfy his hunger when he is starving”. While those in high places steal out of greed, the poor steal to survive and live. 

Conclusion 

The sum and substance of Nigeria’s plight after 27 years of the Fourth Republic is that, a combination of factors have contributed to her predicament, not necessarily because the Constitution is a military document, but because of its structural imperfections, contradictions, the Unitary Federalism it actually represents, as opposed to the true Federalism that a diverse country such as Nigeria requires. 

As such, a multi-pronged approach is required to fix some of the country’s issues. It could be that the time for restructuring is now, while the Constitution requires bold amendments to correct the imperfections, or a redrawing to reflect true fiscal Federalism, State Police, higher qualifications for office holders, among other innovations. Government/Politicians/Office holders must always operate an inclusive government, bearing in mind the provisions of Sections 14(3),(4),15(2) & 42 of the Constitution, mandating Federal character, promotion of a sense of belonging for all, prohibition against discrimination, and a firm commitment to prioritising the security and welfare of Nigerians, which is the primary purpose of Government. 

For now, Nigeria is showing several signs of democratic fragility, including but not limited to poverty, insecurity, inadequate public trust in Government and its policies, weak institutions and economic stress.