Chukwudi Nweje
Recently, Senate President, Ahmad Lawan inaugurated a 56-member Constitution Review Committee headed by Deputy Senate President Ovie Omo-Agege to thinker with the 1999 constitution. The committee consists of all eight principal officers, one senator each from the 36 states and two members from each of the six geo-political zones.
This, however, is not the first time the National Assembly will inaugurate such a constitution review committee. From 2003 to date, four Alteration Acts, as the Nigerian Constitution refers to amendments, has been passed on the 1999 Constitution. But these amendments did not address the core issues of devolution of powers and fiscal federalism among others that Nigerians complain about the 1999 constitution.
In fact, some analysts describe the series of constitution amendments by the National Assembly as a ritual which virtually every legislative session performs.
Professor Chidi Odinkalu, former Chairman of the Governing Board of the National Human Rights Commission (NHRC) shares this view. He said, “Every National Assembly since 1999 has had their own constitution amendment.”
So, even as the constitution review committee is yet to get down to business and its terms of reference not yet certain, indications are already there that the exercise will be very turbulent.
Stakeholders and groups from the North and South are already bickering over some contentious issues expected to come up when the committee begins work. For instance, the North and the South have expressed divergent views over issues like the establishment of state police and devolution of power. While the North wants the present status quo, where the police is centrally controlled and government powers largely residing with the Federal Government, to remain, their counterparts in the South are favourably disposed to establishing state police and devolving more powers to the states.
The bickering has got analysts wondering whether the current attempt to amend the constitution will produce any meaningful result or whether it will go the way of the previous constitution amendment exercises before it.
Since the 1999 Constitution came into force 21 years ago, there is no doubt that it has been trailed by a plethora of resentments. The opposition against the constitution stems mainly from the fact that many Nigerians see it as an imposition by the military on the people. The argument is that even the preamble of the constitution which says “we the people…having firmly and solemnly resolved…” shows that it is a fraud since Nigerians never at any point sat down to agree to the provisions of the Constitution.
In fact, the constitution is widely seen as a document craftily prepared by former Head of State, Gen. Sani Abacha, preparatory for his plan to transmute from a military Head of State to a civilian president, but for his death in June 1998. Gen Abdulsalami Abubakar, who succeeded Abacha did not convoke a constituent assembly to draft a constitution, due to time constraint and pressure from both local and international pro-democracy activists on the need to return the country to a democratic government. He therefore, merely dusted up Abacha’s constitution and hurriedly promulgated same in May 1999 when he handed over his elected successor, President Olusegun Obasanjo.
Thus, agitations for the amendment, if not outright change of the 1999 Constitution has been on almost since it was promulgated by the military junta of Gen Abubakar.
Crux of the problem
The major complaints about the nation’s current structure is that it is only federal in name.
At independence in 1960, Nigeria had a three-regional structure -Northern Region, Western Region and Eastern Region. The Mid-West Region was later created in 1963, but the structure then was a Federal Government run on the principles of fiscal federalism where every regional government controlled its resources and made contributions to the centre.
That structure changed in 1966 after the military coup of January 15, when Maj. Gen. Johnson T.U. Aguiyi-Ironsi, who though not part of the coup emerged the Head of State and introduced the Unification Decree, which abolished the 1963 Constitution and introduced a Unitary System of government. The military junta of Gen. Yakubu Gowon which toppled Gen. Aguiyi-Ironsi abrogated the Unification Decree and reintroduced federal structure without fiscal federalism which subsists in Nigeria till date.
Prof Ben Nwabueze elaborated on this assertion in a statement he issued to mark Nigeria’s 57th independence where he also called for restructuring of the country to reintroduce the federal ethos that have since been eroded.
He said, “The governmental structure that needs particularly to be reformed by re-structuring is our federal system. Federalism is commonly agreed to be a compelling necessity for the maintenance of peace, stability and development of Nigeria as one country.
“The 1960/1963 Constitutions of Nigeria established a federal system with three (later four) regions each invested with sufficient autonomy to govern itself in matters that concerned it alone – internal self-government – without undue control by, or interference from, the centre, thus giving each region the impetus and incentive to develop optimally in healthy competition with the others.
“The federal system under the two Constitutions (1960 and 1963) may fairly be described as a model of true federalism.”
Elder statesman and Afenifere chieftain, Ayo Adebanjo expressed the same view. He told Daily Sun in a recent interview, that the military distorted the political structure of the country after the 1966 coup when they abolished fiscal federalism and imposed the unitary command federal structure Nigeria is today.
He said, “This restructuring we are talking about is not new; it is in the constitution that granted us independence. At independence in 1960, there was a constitution agreed to by the political leaders, Dr Nnamdi Azikiwe, Chief Obafemi Awolowo and the Sarduana of Sokoto, Sir Ahmadu Bello until 1966 when the military staged a coup and imposed this new constitution on us. The setting then was called derivation. It is just insincerity and hidden agenda that make people ask what is restructuring. They imposed this military constitution so that they can dominate other sections of the country. I liken it to the horse and the rider; in this case they are the rider and the rest of the country, the horse.”
Speaking in Abuja at the unveiling of a book, ‘We can’t all Be Wrong: Nigeria and the Restructuring Debate’, written by Dr Ethelbert Okere, in November 2017, Adebanjo further noted; “Anybody who wants this country to be united must ensure we live together and develop at our own space, which is the essence of federalism. In a country that is multicultural and multilingual, only a federal form of government can keep us together in peace.”
Senior Advocate of Nigeria (SAN), Adeyinka Olumide-Fusika also argued that the several amendments to the 1999 constitution have not addressed the challenges facing the country.
He asks, “How many constitutions have we had since 1999? We are always changing constitutions but none has ever worked. We are on the fourth or fifth amendment exercise now, what is wrong with us? The problem is not with the rules, the problem is with people who do not want to do things by the rules. Take the issue of elections for example, they have made several amendments to the Electoral Act. Before every election since 2003, they amend the Electoral Act. But it is only a dishonest person that will say any of those amendments have led to better election. In fact, every election since 1999 has been worse than the one before it. That shows the problem is not the law.”
Sessional legislative ritual
The Four Alteration Acts the National Assembly has passed on the 1999 Constitution since 2003 have failed to address the core issues that threaten the core federal principles.
Daily Sun recalls that in 2006, the Fifth Legislative Session made the first attempt to amend the 1999 Constitution. The exercise was however abruptly shut down following the discovery of a controversial proposal for the extension of the tenure of the President and the governors from two terms of four years each to three terms of four years, which was smuggled into the draft proposal of the National Assembly Joint Committee on the Review of the Constitution.
The smuggled proposal would have effectively actualised the then rumoured third term agenda of President Olusegun Obasanjo who was due to leave office on May 29, 2007 barely one year from the date the amendment exercise was initiated. Then Senate President, Ken Nnamani, who shut down the review exercise said the constitution will not be amended before the general elections.
In June 2010, the Sixth National Assembly passed the First Alteration Bill and among other things, it sought to provide for the financial independence of the National Assembly and the Independent National Electoral Commission (INEC). Five months later, the lawmakers passed the Second Alteration Act on November 4, 2010, which provided for new time-lines for the conduct of national elections by INEC. It later passed the Third Alteration Act, which sought to establish the National Industrial Court on December 15, 2010.
In 2012, the Seventh National Assembly also initiated another constitution amendment. Among the amendments passed by the legislature then was alteration of Section 9 of the 1999 Constitution by inserting new subsection 3A, which dispenses with the assent of the President in the process of constitutional amendment. The amendment was concluded and passed to President Jonathan in April 2015, few weeks before he was to vacate office.
President Jonathan withheld assent to the amendment on the argument that a number of the amendments constitute flagrant violations of the doctrine of separation of powers enshrined in the 1999 Constitution and unjustifiably whittle down the executive powers of the federation vested in the president by virtue of Section 5 (1) of the 1999 Constitution.
The rift between the executive and the legislature and threats by the National Assembly to override the president’s veto led to a legal tussle. The Attorney General of the Federation (AGF) and Minister of Justice, Mohammed Adoke, SAN, dragged the National Assembly before the Supreme Court, where he urged the court to set aside Sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the amendment passed by the National ment died.
What would become the most far-reaching legislative proposals towards the amendment of the 1999 Constitution was done by the Eight National Assembly in 2017. In just two days, July 26 and 27, 2017, the Senate passed a total of 33 amendments and 12 out of the 33 proposed amendments however failed in the House of Representatives on July 27, 2017 when they were put to vote.
Some of the amendments passed in the Fourth Alteration Act include: Reduction in Age for the Office of the President and Membership of the House of Representatives and State Houses of Assembly otherwise called Not Too Young to Run Act; Disqualification of person sworn in to complete term of president or governor from being elected to same office for more than one term; setting of timelines for determining pre-election matters, and financial autonomy of state legislatures and state judiciary among others.
Some of the amendments struck down are; devolution of power, 35 per cent affirmative action for women as ministers, and independent candidacy.
Analysts note that some of the topics rejected in the fourth attempt to amend the constitution form the crux of the existential problems facing the country.
2014 national conference report
The 2014 National Conference inaugurated by President Goodluck Jonathan on March 17, 2014 in Abuja, provided a platform for what would be the first all Nigerian stakeholders conference to discuss the terms and conditions of Nigerians living together.
Although Nigeria celebrated its centenary in 2014, the amalgamation of 1914 that brought the people together was done at the convenience of the British colonialists and not in the interest of the people.
The Conference was headed by retired Chief Justice of Nigeria (CJN), Justice Idris Legbo Kutigi and had about 492 delegates that represented a cross-section of Nigerians including the professional bodies group, market women, students, labour unions, religious groups and all the geo-political zones of the country. It was charged to look into the challenges facing Nigeria and explore how the different components of the country can live together so that the country can forge ahead as one strong and united country.
The conference discussed virtually all aspects of Nigeria under its main committees.
The recommendations of the national conference, which sat for five months and toured the six geopolitical zones for public hearings was submitted to President Jonathan in September 2014. President Jonathan also constituted a seven-member committee to study the report of the conference, articulate the recommendations therein and develop appropriate strategies for its implementation; and advise Government on all matters necessary for the effective implementation of the Report. Unfortunately, the report of the conference was shelved and left to gather dust.
El’Rufai committee on resource control
The President Buhari-led government on coming to office rejected the 2014 National Conference recommendations.
Garba Shehu, Senior Special Assistant to President Buhari, had claimed the conference was not all-inclusive and will not be implemented.
He said: “It was not an inclusive conference. You very well recall that the leaders of our own party – whether ACN and all of that and the governors were missing from that conference. To make matters worse, the confab was heavily criticised but the Goodluck Jonathan administration went on with it. The confab was lopsided in terms of representation, ethnically, religiously, regionally; and they were insensitive to all of these things and then they want to force it down the throats of everyone. That is why it’s a problem.”
However, the APC later raised a panel on restructuring chaired by Kaduna State Governor, Mallam Nasir El’Rufai to look into how to restructure Nigeria.
The committee made several recommendations that touched on some of the fundamental challenges of Nigeria. For instance, on derivation, it recommended that the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC) Act be amended to vest it with the power to periodically review the derivation formula and make recommendations to the President who shall table the same before the National Assembly for necessary action. It also favoured constitution amendment to give more revenue to the states and reduce the Federal Government’s share; devolution of powers to the states; state police. The committee also proposed some level of resource control where mining, minerals, oil revenues should go to the states but that it should be limited to onshore areas, while the offshore ones would still be owned by the Federal Government.
But despite the similarities in some of the recommendations of the 2014 National Conference and the El’Rufai panel, the Federal Government has left the recommendations of the two panels to gather dust.
Hope rising
The Deputy Senate President, Omo-Agege has however said the new constitution review committee will consider the recommendations of the 2014 Constitutional Conference and the governor Nasir El-Rufai-led committee on restructuring.
He said, “This committee will consider the recommendations of the 2014 National Conference and the Governor Nasir El-Rufai-led committee on restructuring. We would also liaise with our counterparts in the House of Representatives, the State Houses of Assembly and collaborate, build consensus with all stakeholders to ensure synergy. Our task would be to find a consensus through compromise in order to meet the ever-changing needs of our people.”
He noted the country cannot gather a better representation of the Nigerian people than those that went to the 2014 conference if indeed Nigeria needs a people-based constitution.”
Afenifere spokesman, Yinka Odumakin, who was a delegate to the 2014 National Conference, believes the current attempt at amending the 1999 Constitution is at best a waste of resources. He said the recommendations of the National Conference which had representation of all segments of Nigeria is the best people made working document Nigerians can think of.
Dr Isuwa Dogo, spokesperson for the United Middle Belt Forum (IUMBF), shares the same view.
He said, “The recommendations of the 2014 National Conference should be implemented. The issue of devolution of powers, state police and solutions that touch on every aspect of the Nigerian economy were discussed and agreed upon by representatives from all parts of the country.”