We are all aware that the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), was originally a Schedule to the Federal Military Government’s Decree No. 24 of 1999 aka Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999. And, we are also aware that, there was not much equity or justice in the Nigerian Military’s vocabulary and actions!
Even though the Preamble to the Constitution, specifically the fourth paragraph thereof, resolves to promote “the good government and welfare of all persons in our country on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people”, it is evident, even from some of the provisions in Chapter l of the Constitution (which we are primarily looking at today) that, ironically, this document is designed to achieve the exact opposite of what it claims it has resolved to do.
With the agitations for secession because of marginalisation, tribalism, nepotism etc, it is time that Government realises that, if we really want to stay together as “One Nigeria”, there must be some far reaching changes to our Constitution and general living conditions. The complaints of everyone, whether Christian, Muslim or Traditionalists, Northern or Southern, must be taken into serious consideration, instead of this tendency to gloss over issues as if they do not exist, or pretend that all is well. This mindset, that is, the achievement of a society where majority of the people feel included and equal, where there are workable and fair compromises, must also form the basis of any constitutional reconstruction (aside from concepts like true Federalism, Separation of Powers, Secularity of the nation and so on).
Observation No. 3: State Creation
And so, I decided to continue with my observations about the changes that are required to be made, to make the Constitution more suitable. Last week, my first two observations were in respect of provisions for Plebiscite, Referendum and Sovereign National Conference; and about the transformation from a Unitary system to true Federalism.
My third observation concerns States/State creation. Section 3(1) of the Constitution enumerates the 36 States of the Federation and the Federal Capital Territory, Abuja. These States and Abuja were divided into six geopolitical zones by the Abacha regime, possibly to be able to allocate resources more effectively; the zones are however, not recognised by the Constitution. Like I said previously, the military didn’t do many things fairly, and the zoning resulted in the North Central (including Abuja) and the North West having seven States each, the North East, South West and South South, six States each, and the South East, five States. This zoning policy seems to have added to Nigeria’s problems, as it gives the North Central and the North West zones an advantage over the other zones – so much for equality and justice – but, the truth of the matter is, this zoning system is unconstitutional.
Section 71(1)(a) divides each State of the Federation into three Senatorial districts and 360 Federal Constituencies (Section 71(1)(b) of the Constitution). See Sections 48 and 49 of the Constitution. The Southern States have a total of 51 Senators, while the Northern States have a total of 57 Senators. Ditto in the House of Representatives. I do not dispute the fact that the Northern States are made up different ethnic nationalities who practice different religions, and therefore, they may not usually have a consensus, but the fact is that, many in the South argue that a combination of the Constitution (which is the grundnorm) and the military zoning, give the North an undue advantage/veto power over the South, and that this is neither equitable or fair, nor does it promote unity. That in fact, it does the exact opposite – it promotes disunity and resentment.
It is time to decide whether we want to retain these zones and recognise them in the Constitution, in which case, the issue of creating more States so that the zones that do not have up to seven States can achieve equality with them, arises. Unfortunately, Sections 8 and 9 of the Constitution make it almost impossible to create new States, in order for the deficient zones to attain equality with the seven State zones.
While I do not particularly believe that Nigeria requires any more States, in the interest of equity, equality and justice, if the zoning system is to be maintained, should Section 8 of the Constitution be amended to include a proviso at the end of Section 8(1)(d) that all the zones must have an equal number of States, and that the convoluted process that is required for State creation, should be by-passed in the case of adding two States to the South East, and one each to the North East, South West and South South respectively, to achieve equality with the seven State zones?
Alternatively, there is the argument that we already have too many States, many of which are not viable; and therefore, the number of States should be reduced; while some others prefer that we revert to the regional system of old. This is a very serious conversation that needs to be had, and decided upon in a referendum. Funny enough, State and Local Government creation may be the only processes that the Constitution provides for referendums for, as a prelude to creating them.
The issue of creation of Local Governments must also be addressed – this must be a population/statistics driven process – the larger the population, the more local governments are required to take effective governance to the people. It is therefore, ridiculous that Kano should have more local governments than Lagos. A proviso should be included in Section 8(3)(d) of the Constitution (in order to by-pass the complicated local government creation process), to increase the number of local governments in Lagos so that, at least, they are equal to that of Kano, since Lagos is more populated than Kano.
Baba’s Independence Day Address
Last Thursday, I listened to Baba (President Muhammadu Buhari)’s October I Independence Day address to the nation. He made comparisons with Saudi Arabia, Ghana and other oil producing countries with regard to the price of fuel, and concluded that there was no justification for petrol to be cheaper in Nigeria than Saudi Arabia. While this may be true, we have seen how Saudi Arabia has utilised its oil revenue to develop their country, and what nearby Ghana is trying to do to improve their own country (mind you, the minimum wage in Saudi is about 10 times more than the minimum wage in Nigeria). What will Nigeria do with the savings from the fuel subsidy, going forward? What will be the essence of these savings if they are wasted, as opposed to achieving the Fundamental Objectives and Directive Principles of State Policy contained in Chapter 2 of the Constitution? None.
Observation No. 4: Non-Justiciability of Chapter 2 of the Constitution
To this end, Section 6(6)(c) of the Constitution should be deleted therefrom, as ousting the jurisdiction of the courts in respect of the afore-mentioned Chapter 2, does not allow for holding government to any form of accountability. In a democratic system such as the one we claim to be operating, apart from appealing to the consciences of those who are in government, which is obviously not an effective form of ensuring performance and securing accountability, the other ways to ensure achievement of any laudable objectives apart from entrenching the doctrine of separation of powers into our system/checks and balances, is to be able to ventilate grievances concerning the non-attainment of these objectives in the courts, in order to compel performance – in a fair and effective judicial system, which operates swiftly and efficiently.
Observation No. 5: Bindingness of the Constitution
Last week, there was a hue and cry about the President’s nomination of Mrs Aisha Dahir Umar from the North East, as the Director General of PENCOM to replace Mrs Chinelo Anohu-Amazu from the South East. Senator Enyinnaya Abaribe raised an objection to Mrs Umar’s nomination on the floor of the Senate, on the ground that it contravened some provisions of the law which provides inter alia that, replacements must be from the geo-political zone of the immediate past member that vacated office.
Should Section I(1) of the Constitution also be amended to state unequivocally that the Constitution has binding force on all authorities including government agencies, and on all persons including the President, Vice President, Governors and Deputy Governors, so that everyone is left with no doubt that the Constitution binds us all and no one is above the law, because these Government Officials seem to regularly act in blatant disregard of the Constitution, as if its not binding on them at all? For example, even though Section 171 of the Constitution gives the President the power of appointment of certain officials, it must be subject to sections like 1(2), 14(3) & (4), and 42(1) of the Constitution, which dictate the rules on appointments – that is, government must not be controlled by or concentrated in the hands of any particular group, the Federal Character provisions of the Constitution must be strictly adhered to by all, and the guarantee of freedom from discrimination of every Nigerian.
Observation No. 6: Section 10 and the Secularity of Nigeria
Let me restate the fact that my late father was a staunch Muslim, my mother is a staunch Catholic, and we lived happily in our multi-religious household. I therefore, do not understand why religion should be the cause of so much disaffection in our land – but, the fact remains that, it is. And, that is why, honestly, the only way we can peacefully co-exist as a nation, is to keep religion personal and leave it out of government and the public space completely. Why give prominence and provide a fertile ground for something that is one of the main causes of disaffection in our nation, to grow? Why breed hatred in the land, because of it? Why does Government continue to play the ostrich, and pretend that it is unaware of the problems that religion is causing in Nigeria? Government should not be involved in issues like how pilgrims get to Jerusalem or Mecca; it sounds ridiculous. Some have argued additionally that, the fact that Sharia law has been imposed in the Northern States, breaches the fundamental rights guaranteed by Sections 38(1), 39(1), 40, 41(1) and 42(1)(a) of the Constitution.
Therefore, Section 10 of the Constitution should be amended to provide unequivocally that Nigeria is a secular nation with no official (or favoured) religion, and that neither the country nor its States, shall adopt or practice any State religion. It must include a sub-section which clearly provides that only the Magistrates Court, State High Court, Federal High Court, Court of Appeal and Supreme Court have criminal jurisdiction, and not the Customary and Sharia Courts.
Some have attempted to draw some type of correlation between Customary law and Sharia law.
I beg to disagree. While customary law is a source of Nigerian law – arising from our traditional/native customs, the source of Sharia law, is religion. In a secular society, religion plays little or no role in the public space. However, I do concede that we do certain things, like getting married according to native law and custom, and according to the tenets of Islam; and in the event of dissolution of such marriages, it must be done by those with special training so to do. Similarly, issues of inheritance traditionally and Islamically, must be handled by experts in the said courts who are well trained in this regard. Unlike Sections 233, 241(1) and 251 of the Constitution which expressly confer criminal jurisdiction on the State High Court and Federal High Court, Sections 262, 267, 277, and 282 do no such thing on the Customary and Sharia Courts. However, for the avoidance of doubt, I submit that the jurisdiction of Customary and Sharia Courts must be more expressly and unequivocally limited and restricted to civil matters such as this, and not criminal matters.
The overview of the Preamble and the first chapter of the Constitution shows that, practically every section therein requires serious deliberation upon, and some form of amendment. As for me, I have decided to lead by example, by updating my CV to reflect my State of Origin as Nigeria, and my religion as Personal. My dear Colleagues, what are your views on Chapter 1 of the Constitution?