When is a People’s Constitution?

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THE HORIZON BY KAYODE KOMOLAFE,   kayode.komolafe@thisdaylive.com

BY KAYODE KOMOLAFE

Former Head of State General Abdulsalami Abubakar made a point on ARISE NEWS the other day that should not be ignored by the advocates of a fresh constitution for Nigeria.
The 1999 Constitution has been fiercely criticised as an imposition by the military government of General Abubakar.

The opinion of many respected critics is that the document, which became the supreme law of the land with the promulgation of Decree 24 of 1999, lacks the legitimacy required of a people’s constitution. Since it was never subjected to a referendum, not a few pundits say the first line of the constitution containing the words “ the people” is “a lie.’

In response, the general said the problems attributed to the constitution ought to have been solved in the last 22 years of civil rule.

That is certainly something to ponder.

Abubakar, of course, pointed to the difficult circumstances of the emergence of the constitution especially the severe limitation of time. The Abubakar regime didn’t actually last a year because of the national mood in 1998/1999 which was decidedly against prolongation of military rule. The luxury of time was objectively not there for a thorough-going process of making a constitution. A committee led by the late Justice Niki Tobi put together the document which the military proclaimed a constitution. Such was the hurry that Abubakar’s information minister, Mr. John Nwodo, alleged recently that copies of the constitution had not been printed by the time General Olusegun Obasanjo took oath of office as President based on the constitution on May 29, 1999.

The importance of Abubakar’s mild observation in the present situation is that the call for the restructuring as a solution to Nigeria’s problems is ultimately a constitutional question.

In fact, the question to be asked is this: if the 1999 constitution is an improvisation, why in over two decades has the real thing not been put in place?

The failure to have a constitution that fits the bill cannot be said to be due to lack of committees and national conferences for the purpose.

For the eight years of President Olusegun Obasanjo there were activities towards constitution review. Early in his tenure, Obasanjo set up an inter-party committee to review the constitution. The National Assembly had its own committee working towards the same objective. Later, a political reform conference was staged by Obasanjo.

The efforts at constitutional review during that period ended in a denouement with the controversy over a third term for the president.

The government of President Umaru Yar’Adua focussed specifically on electoral forms by setting up a committee for the defined purpose. The committee headed by former Chief Justice Muhammadu Uwais submitted a report 13 years ago which is yet to be implemented by government. The establishment of electoral offences tribunal is one of the recommendations embodied in the Uwais report.

In pointing to the way out of the current crisis, references are often made to the recommendations of the 2014 National Conference convened by President Goodluck Jonathan.

Some of the recommendations could be put into effect administratively and by means of executive orders.

There are other definitive proposals of the popular conference that should be passed on to the National Assembly for the purposes of legislation and possible amendments to the constitution.

For instance, it would require constitutional amendments to scrap the current system of 774 local governments, create or merge states or review the revenue allocation formular. In the same vein, you cannot modify the presidential system by incorporating features of the parliamentary system without changing the constitution.

So, since 1999 it’s only the government of President Muhammadu Buhari that has not staged a constitutional conference. His party, the All Progressives Congress (APC), has restructuring of the federation in its programme. The party set up a committee in the run -up to the 2019 presidential election on the implementation of that aspect of its 2015 electoral manifesto.

With 26 months more in power, it is clear that making a “people’s constitution” is not a priority of the Buhari administration. Yet, there are patriotic voices to the effect that having a constitution that addresses the structural defects of the Nigerian federation is central to resolving the crisis. Reasoned arguments have been made in the course of this advocacy.

Without losing the strategic focus of a restructured federation, tactical steps of political engineering may be required “to bring the nation back from the brink” as many observers are wont to say at this time.

To do this, intellectual efforts should be made to demystify the whole process of constitution making. As Abubakar rightly explained, a great part of the 1999 Constitution is borrowed from the 1979 Constitution. The 1979 document has remained a reference point for over 40 years.

Now, it is a historical fallacy to say that the 1979 constitution had no people’s inputs at all. Apart from the fact that 49 eminent Nigerian patriots drafted the document, a constituent assembly was elected to debate it.

The debate was so vigorous and thorough that it has been dubbed the Great Debate in history. The debaters legitimately represented the Nigerian people from different constituencies in the country.

The pro-people and nation-building content of the 1979 constitution would readily recommend it as a reference for any constitution-making process. Here we are talking, in particular, of the Chapter II of the constitution which is reproduced in the 1999 Constitution. In this socially remarkable chapter, the “security and welfare” duty of the government is comprehensively defined, but unfortunately not made justiciable. At the root of the current multi-dimensional crisis is the failure of government to perform this constitutional duty. This collapse of governance could have been avoided if government had been guided by this chapter of the constitution.

By the way, when critics dismiss the constitution as “useless”, are they also saying that the Chapter II is of no material value to the welfare and security of the people? As people’s lawyer, Femi Falana, pointed out recently in a lecture, the restructuring debate is seemingly silent on this aspect of the constitution. The current advocacy should include making the socio-economic rights spelt out in Chapter II easily justiciable.
A document would certainly not be a people’s constitution without a similar or even richer content than the provisions of Chapter II in which the basic needs of the people are made part of the “fundamental objectives and directive principles of state policy.”

Doubtless, a new constitution cannot be proclaimed in spite of a sitting President. It would take a revolution to have a constitution made without the government in place leading the process.

The Buhari administration seems to have pushed the matter of constitution review to the National Assembly.
Therefore, instead of drafting a fresh document, democratic forces should rather engage the National Assembly sufficiently to review the constitution to meet the needs of restructuring.

As organic documents, great constitutions have been improved upon through amendments and reviews in other countries. It is not enough to say that the legislators lack the legitimacy to make a people’s constitution. After all, the federal and state legislators elected by the people make laws for the country. Everybody is expected to obey these laws.

From the several documents produced in the last four decades from conferences and by committees, the question may not only be about what should be the content of a people’s constitution.

In sum, the lawmakers elected by the people should be pressured to review the constitution to meet the urgent needs of the nation.

If not, the question may as well be asked: when is a people’s constitution?