NIGERIA NEEDS AN AUTOCHTHONOUS CONSTITUTION

For a constitution to be legitimate it must emanate from the people, writes

NICHOLAS EBEHIKHALU

The phrase ‘autochthonous constitution’ can be better understood if the word ‘autochthonous’ is defined. It is derived from a Greek word ‘autochthones’ literally translated as ‘people or mortals who have sprung from the indigenous soil’ or people who are ‘indigenous inhabitants to a country’. A constitution is therefore said to be autochthonous if it derives its force and validity from its own people or if it is home grown or homemade, native and indigenous to the people and not imposed by colonial masters or imperial powers. A constitution is an expression of the will of the people, and it is an instrument of government made by the people which establish the norms and principles on which they want to be governed. According to Prof. Ben Nwabueze, a constitution is defined as a body of principles according to which a state is organized. The constitution is not just an ordinary document but a document that binds all authorities and persons in a country.

One obvious deduction from this conceptual clarification is that the constitution must be owned and produced by the people, that is, it must be a product that must emanate from the sovereignty of the people. The question therefore is, did the 1999 constitution of the Federal Republic of Nigeria emanate from the people? At various fora, a Nigerian constitutional lawyer, Dr. Mike Ozekhome has consistently provided an answer. According to him, the 1999 constitution is an illegitimate document, a militarily imposed document. It is a decree no. 24 of 1999 which was promulgated by the General Abdulsalami Abubakar military junta of 28 members of the Provisional Ruling Council. It was given to the late Justice Niki Tobi’s panel (a cerebral jurist of the Supreme Court) to couple together…, hence the constitution is wholly an illegitimate jurisprudential child of the military junta. Prof Akin Oyebode while delivering a lecture titled ‘the Nigeria conundrum and the way forward’ said that as far as he is concerned, the subsisting/extant 1999 constitution that provides the legal framework for the country’s socio-economic, political, spiritual, secular and moral life, is irredeemably defective and should be discarded altogether, for the country to make progress rather than going round in circles in a manner reminiscent of the potter’s will – all motion, no movement. We cannot continue living a lie by calling a military decree, which propagates an untruth against itself, the country’s constitution. It should be jettisoned and replaced with a more acceptable instrument which adheres to the tenets of true federalism.

The culmination of the foregoing is that the 1999 Constitution of the Federal Republic of Nigeria did not emanate from the people even though the preamble of the constitution has it that “we the people of Federal Republic of Nigeria having firmly and solemnly resolved to live in unity and harmony… and to provide for a constitution… do hereby make and give to ourselves the following constitution”. There was no time the people of Nigeria came together to make and gave to themselves the 1999 constitution. Therefore the 1999 constitution is not autochthonous; rather, the constitution was imposed or foisted on the people by the military junta.

The story of the Nigerian constitution has been largely, an account of tale of colonially imposed constitution or militarily imposed/based constitution. Beginning from the 1922 Sir Hugh Clifford’s constitution, to the 1946 Sir Arthur Richard’s constitution which established the foundation of federalism by dividing Nigeria into North, West and East Regions; 1951 Sir John Macpherson’s constitution; 1954 Sir Oliver Littleton’s constitution which first operationalised the federal structure for Nigeria by making Lagos the Federal Capital Territory, distinct from the Western Region, with each region having its own judicial arm, up to appellate court; 1960 Independence constitution which provided for parliamentary system of government; and 1963 Republican constitution which established a properly constituted parliamentary system of government; 1979 General Olusegun Obasanjo’s constitution; 1989 General Ibrahim Badamosi Babangida’s constitution which was never used one day; the botched 1995 General Sani Abacha’s draft constitution and to the 1999 General Abdulsalami Abubakar’s constitution. Apart from the 1963 republican constitution, none of the constitutions within the time under review originated from the people.

Until 1960, Nigeria was under British Colonial Rule and from 1960 to 1966 when Major Patrick Chukwuma Kaduna Nzeogwu played out the first military coup; Nigeria practiced parliamentary system democracy based on British model. Still and all, between 1979 and 1983 and from 1999 to date, Nigeria is practicing presidential democracy founded on the United States of America’s model. The United States of America from where Nigeria adopted the presidential democracy is a good example of a country that has an autochthonous constitution.

So, it is significant at this climax that the process and arrangement that gave birth to American constitution is known. The United States’ constitution is a constitution that emanated from popular referendum and plebiscite of the people. As a result of the dismal failure of the Article of Confederation, 55 representatives of the 13 colonies which later turned states (the different Confederates of America who had already gained independence from the British in 1776) gathered together in a Constitutional Convention on May 14, 1786 in Philadelphia, Pennsylvania, ostensibly or with the goal of amending the Article of Confederation, in order to have an American constitution (or a new constitution), with federating units not too weak to be trampled upon and not too strong to overpower the federal government, and to cede some powers to the Government at the centre. When the delegates to the conference or the constitutional convention concluded that the Article of Confederation was beyond repairs, they proceeded to change the entire form of government at its very root by making a draft constitution. On September 17, 1788 there was a ratification of the draft constitution. On March 4, 1789 a new constitution was enacted and came into effect. That was how America had their autochthonous constitution they call American constitution today.

Present in the Constitutional Convention was George Washington who eventually became the first President of America and some other great men like James Madison, George Mason, Roger Sherman, William Paterson and James Wilson. It was at that constitutional conference or convention that the agreement to adopt the principle or the doctrine of separation of powers was undertaken. The principle which John Locke, while writing on his observation in England in the 17th century, captured inter alia: “it may be too great a temptation to human frailty, for the same persons who have the powers of making laws to also have in their hands the powers to execute them, because they will exempt themselves from obedience to the laws they make, and suit the laws both in making and execution, to their own private advantage.”

It is as a result of this process of constitution making in America that the preamble of United States’ Constitution testifies as to the autochthonous nature when it states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure Blessings of Liberty to ourselves and our Posterity; do ordain and establish this Constitution for the United States of America.” It is significant to note that “We the people…” is used in the preamble of American constitution because the people came together to birth the constitution. Nigerians never gathered to make the 1999 constitution, and therefore for the constitution to have in its preamble, “We the people…” is a misnomer and a lie against the Constitution. It is high time Nigeria took the example or path of the United States of America. It is therefore humbly suggested that the only way to bring about legitimate constitution of the people to Nigeria is to institute a process of constitution making like the way Americans did on 14th May 1786 in Philadelphia, Pennsylvania.

We must take notice that you cannot build something on nothing and expect it to stand, rather it will collapse. So, Nigeria cannot choose the expedition or a continuous journey of constitutional amendments, a journey without destination. This is because, the 1999 constitution is a jurisprudential child of illegitimate background and no amount of constitutional amendments can cure the illegitimacy. All the fundamental flaws of deficiencies, inadequacies, and insufficiencies that characterize the 1999 Constitution of the Federal Republic of Nigeria can only be cured by popular plebiscite or referendum in a constitutional convention.

The patriotic Nigerians can only continue to tell it as it is with all passion, riding on the popular aphorism: ‘we can only hope to cure a disease unless and until we call it by its true name’. The path of constitutional rebirth which was chosen for United States by the great men like George Washington, James Madison, George Mason, Roger Sherman, William Paterson and James Wilson, may be cumbersome but in the long run, it is the only viable path. For a constitution to be legitimate it must emanate from the people, who will own it and defend it.

Dr. Ebehikhalu is Associate Professor of Urban and Regional Planning, University of Abuja