Kenny Ashaka
Former National Legal Adviser of the Peoples Democratic Party, PDP, Mr Mark Jacob Nzamah, a lawyer, has expressed contempt for the Constitution Review Committee set up by the National Assembly to review the nation’s constitution, saying the framework embedded in the 1999 Constitution gave some undeserved advantages to a section of the country and would render the committee impotent.
According to him, “people who are comfortable with the errors of the existing condition; people who are beneficiaries of injustice that is founded upon the constitution would not want anything to be corrected because it will take away advantages that have been bestowed on them by erroneous positions in the constitution as currently constituted.”
Mark, a one-time commissioner for justice and attorney-general of Kaduna State, therefore, recommended the composition of a Constitutional Conference, saying that “it is better to sit down and negotiate how this country will be run and not to insist on what is completely impracticable.” Excerpts:
Let’s talk about the Constitution Review Committee set up by the National Assembly and headed by the Deputy Senate President, Ovie Omo-Agege. Let me know where you stand regarding the timing of this particular review. Are we really ripe for a constitutional review?
Well, my personal opinion is that this constitution is incurably bad in the sense that anybody who is aware of its making will know that it is the product of military craftsmen. The government of Abdulsalami Abubakar promulgated this constitution via a decree, I think Decree No.8 or so, and in the constitution; that same constitution that was drafted by Prof Yadudu and his team there is a false claim that “we the people” have adopted the constitution when we never did. So, basically the constitution is faulty in the sense that its draftsmen and makers didn’t speak the truth because the people of Nigeria never sat down to contribute, debate or fulfill that constitution. So, it is a serious flaw that needs to be cured if we are serious about constitutionality. And the constant demand for amendment, review and changes here and there is founded on the fact that the necessary elements of constitution making which says the people who will be bound by the constitution come together, debate the issue, agree on the issue and then adopt the resolutions those fundamental elements were absent when this constitution was crafted. So, if we are sincere and serious about any constitutional change we must go back to the foundation and cure that very fundamental defect in the constitution. Let the people of Nigeria come together and agree on what the constitution should contain. Otherwise the agitations, complaints, cries of the ineffectiveness, inadequacies of the constitution will be with us forever.
If I got you correctly, you’ll rather we have a wholesale review of the constitution. Would that be what you have in mind?
Absolutely, absolutely, because you cannot put something on nothing. It is a well grounded legal principle that if you don’t have a foundation, no matter what you do you are piling something on nothing and it will never stand. So, we have a situation where the very foundations at which reviews and amendments are being attempted are being built upon something that is irreparably faulty. Irreparably faulty because it cannot be corrected and amended unless we go back to the basics. It’s just like a building which foundation is bad. There are cracks that will come on the wall when you start building. If you do not go back to correct the defect in the foundation the Architects or Engineers will tell you that if you don’t go back to the base you will continue to mend those cracks forever. So, I know many people will be afraid to say that we should have a Constitutional Conference, but it is unavoidable. If we want to solve these problems, a constitutional conference is unavoidable.
Every time we undertake a review or amendment of our constitution, ethnicity has always been the problem in terms of the attitude of stakeholders. When you look at the electoral process, for instance, it creates majorities and minorities. In the National Assembly today, some geographical zones are in the majority and, therefore, those amendments must have cost benefit analysis. Ethnicity was the bane during the 2005 political conference and the 2014 national conference. How do we deal with this challenge if we are to have a Constitutional conference and a constitution that is acceptable to all?
Look, Nigerians have refused to take a position that is readily at hand. There was a constitutional conference in 2014. Like it or leave it, Nigerians from all shades of society, tribes, divisions and groups were adequately represented in that conference. You can complain about the nominee or the person who convened that conference, maybe you do not like his political party or his face, but the fact remains that there was a genuine attempt at getting Nigerians from all over, from all shades of all classes; youths were involved, traditional rulers and religious people all came together. Tribes and tongues of different shades were invited and people came together and produced a report. Why is government not willing to even look at that report? All these talks of review and amendments are just waste of resources and time. If we are serious in this country the very first thing to do is to dust up that conference report and start from there. There are things that were agreed upon that can address all the issues concerning tribal differences, minority and religious rights and the issues that affect the very fabric of our existence as a nation. There was an attempt to address those things and they were really addressed. Concessions were made from left to the right and common positions adopted. It is so unfortunate that people who are supposed to be our leaders openly and deliberately declared that they were not going to look at that report that was produced by Nigerians from different shades of opinion, tribes, religion and they were the ones who picked what they discussed. So, we have a solution or foundation upon which to build and solve all these problems. But for reasons best known to them the people in government today refused and they do so with arrogance to look at it. So, we are not interested in solving the problems of this country because in any bad situation there are people benefiting and those benefiting from the bad situation will not want things to change. That is where we are today. Let them know that the situation of the country now is worse than the previous ones. Some tribes in this country are comfortable with the kind of provisions we have that make them to have undue advantage over every other person. Some sections of this country are very comfortable so they deceive people to think that they are playing politics or undertaking political party agenda when they say their party was not invited to participate in the confab so they will not implement the report. But ask them even the committee they set up which came out with a report have they implemented the report? It’s how long now? But if you look back in history it was not as if they were not invited; they just said they would not participate. I am talking about the APC elements. Most of them were nominated to participate. They elected not to be there and because they did not participate every other thing done by Nigerians have been thrown away.
The review or amendment of the constitution has now become a ritual that has been performed four times in the Fourth Republic, all of which have failed to address the fundamental issues affecting the country’s corporate existence. The Seventh National Assembly was slow in acting on it while the Eight National Assembly threw away power devolution. Do you trust this Ninth National Assembly to do justice to this issue of constitutional review?
The truth is the composition of this current National Assembly is nothing, but the same elements that say they will not implement the 2014 National Conference report. I don’t see them doing anything substantial. Rather they are just beating about the bush. They may tell you they will look at the 2014 Confab report, but what will you do when the policy trust of their executive who have a say in the implementation of any resolution is that they don’t want to hear anything about that Confab? They have said it very clearly that they are not interested in that report. And the executive as we have seen in this National Assembly wield the big stick.
What approach would you want to see adopted? The Eight National Assembly, for instance, adopted a piece-meal approach, but it’s like you want a wholesale review of the constitution so that it represents the voice of the people. Some Nigerians have suggested a review of citizenship rights, restructuring, state police, among others. What are those key issues that you will recommend as necessary and primary areas of focus?
First of all, there must be the political will to solve problems and to solve them permanently and not to play politics with them. What I mean is that unless there is a commitment from the government of today made up of the executive and the legislature, unless they have now agreed that this constitution is defective and needs to be worked upon in a holistic fashion whatever is being done now is a waste of time. That is one. Two, if we get that political buy-in we have to agree that in this country there are several things that are in the Exclusive Legislative List that are in the hands of the Federal Government that should not be there. Several items in the Exclusive List are not supposed to be there. Do you know, for instance, the issue of marriage is in the Exclusive List? For God sake. And that is why the Minister of Interior can sit down in his office in Abuja to bring guidelines to say that me who married 20-something years ago I need his approval before I can say my marriage is valid; that I need a certificate from his office and it becomes law. They create regional offices to go and register their marriages otherwise it becomes illegal. These are absurdities that are contained in our constitution. Then you have land; Federal Government sits and begins to boss people around to own lands, to take over lands and insist, using the states and just look at any community and issue a Certificate of Occupancy, using the state government and take over your land. Of course, there is a provision that it is for overriding public interest. But how many times have we seen the abuse of such powers? It’s all over the country. You go to the issue of resource control; you have people sitting on gold. To take a license and mine your gold you have to go Abuja. So, these are some of the issues we need to look at. But you can’t look at them because the people who are in government at anytime benefit from these reckless positions so they are reluctant to implement them. Restructuring the way it is today, if we don’t restructure, this country will break. I tell you. People will be compelled to take their destinies into their hands if we continue this way. It is better to sit down and negotiate how this country will be run and not to insist on what is completely impracticable. The foundation, the gum that is used in binding this country together is falling apart either out of exhaustion or abuse. And for me and you who are above 50 years we may condone it, but I know that our children will not take what is happening today because you cannot be sitting in a country where resources are brought together from everywhere, gathered to Abuja and then shared irrespective of input from beneficiaries and because you are sharing it from Abuja you have used the same constitution to create advantage for some people. How can anybody justify that Kano State has 44 local government areas and Lagos has 20. And it is that delineation that is used to share the national wealth. How do you justify that? You come to the National Assembly, like my location Zangon Kataf Local Government Area, which is the largest local government area in this country with huge population we do not produce a member of the House of Representatives. We are lumped with another local government, Jaba Local Government Area to produce a House of Representatives member. Meanwhile in Kano you find them producing tens of tens of members in the House of Representatives, all because the people who drafted this constitution distributed local governments to themselves and delineated these constituencies for themselves. So, the injustice and the imbalance that is embedded in this constitution needs to be broken and redesigned if we must stay together. It is a very terrible document. People were given constituencies based on their names, where they come from and who they are. Military officers were given local governments because they were in charge. So today, the national sharing formula is based on those constituencies and delineations that were artificially and unilaterally distributed amongst friends, not based on population. No. And I have done my calculations. On what basis do we have 44 local government areas in Kano and we have 20 in Lagos? How many people reside in Lagos and how many people reside in Kano? And where does the money come from? These are issues that people do not want to discuss and people will not want to discuss. And if you say you want to use this National Assembly to correct those things you think the number of legislators who are in the House of Representatives who are enjoying this imbalance from Kano will come and support you? That is the issue. So, when you say it is this same National Assembly that will correct the issues I tell you I don’t trust them, I don’t believe they can do anything about it.