Towards an Equitable Constitution

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Happy 60th Independence Day Everyone (whatever that means)!

I wonder whether I have simply just become a sceptic over the years! Forgive me for not feeling ecstatic, while many seem to be basking in the euphoria of a budding extensive constitutional amendment; I’m not holding my breath that anything significant will emanate from the Senate’s constitution amendment exercise! If, on the contrary, positive results arise therefrom, it will be an extremely pleasant surprise. Of course, there is nothing wrong in bodies like the NBA, civil society organisations etc, forwarding their submissions to the Senate by the due date, but beyond that, the man on the street who represents the majority of Nigerians must also be involved, especially if there will be sweeping amendments, as we have been made to believe that there will be.

Constitutional Amendment: Process to be Adopted

Before we go into the actual amendments which are to be made, I think the first bridge to cross is, how the Senate will or should go about carrying out this exercise, that is, how to go about making true the preamble of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) – “WE, THE PEOPLE of the Federal Republic of Nigeria; HAVING firmly and solemnly resolved……”. At the risk of sounding like a broken record or Cacofonix, I must reiterate the fact that, Nigeria has not really had a constitution which reflects most of the wishes of the people, possibly since the 1963 Republican Constitution. Most of the others, including the present Constitution, have been direct or indirect contraptions of the military.

This time around, for the amendments or total reconstruction of the Constitution to be sincere and meaningful, the people must be a part of it, and as directly as possible, not just through our so-called representatives in the National Assembly (NASS) There are various ways, in which this can be achieved. For one, it is time that our representatives in NASS start to convene ward meetings to hear the views of their constituents on a lot of these issues, instead of making themselves so scarce that we only see them on television when sittings at NASS are flashed as news clips. I’m sorry to say that our representatives do not seem to take the time to seek the views of their constituents – they represent themselves, and get together to push their own personal, group or Party agendas to garner political leverage for themselves, and not that of the people per se.

Sovereign National Conference

A Sovereign National Conference (SNC) can be convened (possibly with resolutions from past National Conferences playing a part, including the one which took place in 2014 during President Jonathan’s administration), to consider and come to a consensus on all the knotty issues that have confronted our nation, not just since our return to democracy in 1999, but since the amalgamation of the Northern and Southern Protectorates in 1914, and how Nigeria will be restructured for the better.

Late Chief Gani Fawehinmi, SAN, SAM, suggested that one person from each of our 774 local governments, should be elected to participate in the SNC. He also suggested that bodies like the UN, ECOWAS, OAU, EU, the Media and International Rights Organisations, should be given Observer Status at the SNC. My late Father, High Chief Omowale Kuye OFR, was also a proponent of SNC and Federalism, and wrote extensively about it in his book , ‘A Review of the 1999 Constitution of the Federal Republic of Nigeria’. High Chief Kuye said “The best option is a Conference. There at the Conference, the ethnic nationalities living in geographical Nigeria will agree on a Constitution that will make the Nigerian Nation indivisible, indissoluble and united”. High Chief Kuye however, rejected the idea that the SNC should be convoked by either the Executive or the Legislature, but by all “the ethnic nationalities” within Nigeria – the people. I strongly recommend his book as a source of information, for those who will be part of this constitutional amendment exercise.

On the heels of the SNC would then be a Plebiscite and or Referendum, before the constitutional amendments or holistic replacement of the Constitution, is undertaken.

Plebiscite

Though there exists what is known as a Plebiscite, which is when the opinion of the people is sought on certain questions; however, these responses are not legally binding, and Government does not have to act upon them. Even though it is a measure which can help to feel the pulse of the people on a lot of the issues that have plagued Nigeria, it may not be of much use in this circumstance, since the outcome of a Plebiscite does not have to be implemented. At best, it can act as a guide.

Referendum

There’s also the option of a Referendum which is simply people voting upon a specific constitutional or legal question, the outcome of which, unlike a Plebiscite, is legally binding and will be reflected by way of constitutional amendment or affirmative Government action. For instance, the vote for Britain to exit the European Union was a referendum. Likewise, the referendum held in Italy on September 20, in which people voted to reduce the size of their Parliament by one-third, and thereby save Italy at least €1 billion in the cost of governance, over the next 10 years or so.

For those who say that there is no provision for Referendum in our Constitution, I beg to disagree. Even if it is not provided for expressly, it is implied. How do the people “firmly resolve” as provided in the Preamble of the Constitution, if their opinions are not sought and obtained by way of a legally binding referendum? How does sovereignty belong to the people of Nigeria from whom government through the Constitution derives all its powers and authority?

(Section 14(2) (a) of the Constitution). How can the participation by the people in their government be ensured? (Section 14(2) (c) of the Constitution). The answer to these questions, is through the use of processes like Plebiscites and Referendums. Not only must this process be employed, it must be inserted and expressly provided for in the new/amended Constitution. The practice by which the public is engaged only during the campaign season when their votes are being canvassed by candidates, is not the best.

While it may not be possible to get the people’s opinion on every single amendment or provision in the Constitution, especially because many of the issues involved may not even be understood by the average man on the street or in the village, important issues like whether the country should remain as one, bearing in mind the agitation of some to secede, should be part of the Plebiscite/Referendum; whether the agitation for secession can be assuaged if things are done more equitably (possibly, if the powers of the Federal Government are decentralised and true Federalism can be achieved), whether the Presidency of the country should be rotated from zone to zone (maybe this won’t even be necessary if there’s a decentralisation), the size of the National Assembly, State creation (so that, at least all the zones have seven States each like the North West and North Central zones) or reduction, whether the people are satisfied with the number of local governments which their States have (for instance, it is ridiculous that Kano should have more local governments than Lagos), State Police, whether the issue of Nigeria being a secular nation should be strictly upheld – crucial issues like this should be brought before the people, for their input.

Observation No. 1 & 2

From time to time, leading up to the Senate’s deadline next year, I will make observations about constitutional amendments that are required, here on my page.

Unfortunately, because of space constraints, I am unable to list every section and how amendment should read; but I will give as much of an overview as possible.

I think I should proceed gingerly on the premise that Nigerians want to stay together, but subject to there being a complete restructuring of the country to adopt ‘true Federalism’ (this is fast becoming the new catch phrase!) and a more equitable society, with economic restructuring, where no tribes feel marginalised, or that the Constitution has been skewed to favour a particular ethnic group or religion.

My first observation is that the Constitution should be amended to expressly provide for SNC, Plebiscite and Referendum, and the process of how they should be carried out, especially the SNC. While the Plebiscite and Referendum can be done by means of people voting directly – the same way we vote in elections, the SNC is slightly more complex. One thing is for sure – the SNC cannot be a body of selected individuals by the Executive or the Legislature, as in the case of the 492 or so nominees who partook in the 2014 National Conference. That defeats the purpose, as such nominees are representatives of the Government, and not the people. While Chief Fawehinmi suggested that the composition of the SNC should be by way of election of one individual per local government, another writer, Lawrence Nwobu suggests that 20% of the SNC should be drawn from NASS, 70% equally from all the ethnic groups in the country according to the zones, and the remaining 10% from Religious Bodies, the NBA, the NLC, Student Associations, Human Rights Groups (like SERAP) and other social organisations. I would add to Mr. Nwobu’s suggestion by saying that, at least the 70% must be elected, while the other groups that constitute the remaining 30% can decide who from amongst themselves they want to represent them at the SNC.

My second observation is about the fact that, the Constitution which we have presently, belies the fact that Nigeria practices Federalism, when in reality, it is a Constitution that provides for a Unitary system, one in which power is concentrated in the Central (Federal) Government, which is also is superior to the other levels of Government, that is, the State (Regional) and Local Governments. The Unitary System is best suited to a State where there is no diversity and autonomy, a small and homogeneous country – the opposite of Nigeria, which has over 300 ethnic nationalities practicing different religions.

That is why Nigeria is failing – presently, we have adopted a system that is not suited to us. Federalism is best suited to a large heterogeneous country like ours if we desire to stay together, where the different groups have a good measure of autonomy and self-government; the Federal Government, carries out a few functions on behalf of the whole country, while the Federal Constitution is meant mainly to set out the role of the Central Government and for the protection of ethnic, religious and other minorities within the Federation.

My assertion about Nigeria operating a Unitary system, is supported by several facts – first, by the fact that by virtue of Section 4(2-4) of the Constitution, NASS is empowered to legislate upon the 68 items included on the Exclusive Legislative List and about 30 items on the Concurrent Legislative list contained in Parts 1 & 2 Second Schedule to the Constitution, respectively, while the State Houses of Assembly (Section 4(7) of the Constitution) are left to contend with a few irrelevant items left on the Concurrent Legislative List and what is excluded from the Exclusive Legislative List, which is little or nothing. In short, practically everything is under the purview and control of the Federal (Central) Government, leaving the States with minimal control over themselves – Federal Police (Section 214), nationalisation of mining and all mineral resources (exclusive legislative list), the economy and concentration of all revenue in the hands of the Federal Government (Sections 162-168), the National Judicial Council and so on.

These sections and others in the Constitution, which promote a unitary system must be considered, evaluated and re-drafted, in order to realise true Federalism. Neither level of government should have absolute power, as the Federal Government has now. The Exclusive Legislative list requires purging of many of the items, which should be transferred to the States. The issue of State Constitutions which will be more extensive and tailor made for each State (as we have in the USA), must also be considered.

Conclusion

The constitutional amendment/holistic reconstruction exercise, must be commenced on the basis that what is to be achieved is an equitable and all-inclusive nation, in which the system of government is best suited to us. This seems to be Federalism. We do not have to copy and paste from any other jurisdiction – this is the time to develop our own home grown version of Federalism that works for us, but obviously following the basic tenets of the concept. Enough of the knee-jerk amendments and responses, which have so far achieved nothing.