Amended Constituion: Nigerians Must Take Charge Of Their Destiny

By Babatunde Fashola

The Constitution of the Federal Republic of Nigeria, 1999 (CFRN) is the basic law that lays down the nature and structure of governance in Nigeria. It also regulates relationships among the federating units as well as their constituent three arms of government.

As it was adopted by a military regime, the current version was promulgated as a Schedule to the Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 24 of 1999. It came into effect on May 29, 1999 when Nigeria returned to civilian and democratic governance.

Although the 1999 constitution was preceded by a nationwide debate organised by the Constitutional Debate Co-ordinating Committee (inaugurated on November 11, 1998) it has never been regarded as a genuine product of the people of Nigeria.

This is mainly because the Military Government had a dominant influence on its contents, whereby it endorsed many practises of the military era which were more unitary than federalist.

There have therefore been persistent calls for change.

At one end are those who insist on a brand new constitution to be produced through a sovereign national conference.

At the other are those who want some aspects of the current constitution amended so as to give the concept of federalism its full effect.

Previous Constitutional Review Exercises

In response to persistent calls for amendment, the Presidency and the National Assembly have initiated several review exercises during which Lagos State Government always participated actively.

For instance, in February 2005 the Federal Government inaugurated a National Political Reform Conference (NPRC) to review the 1999 Constitution.

The Lagos delegation to this Conference was led by Alhaji Femi Okunnu, SAN, an eminent Lagosian and former Federal Commissioner for Works. Unfortunately, this exercise ended abruptly following the tenure extension controversy.

Another attempt was made in 2009 when certain proposals were laid before the National Assembly.

The Senate Committee then decided on nationwide public hearings with the South West Meeting scheduled to hold in Lagos on the 14th and 15th December, 2009.

In order to ensure effective participation and to present a strong and vibrant position for Lagos State, I inaugurated a Steering Committee of the following eminent Nigerians to consider and articulate a position for Lagos State –

1. Alhaji ‘Femi Okunnu SAN, Chairman

2. Asiwaju Olorunfunmi Basorun, Member

3. Asiwaju ‘Bola Ahmed Tinubu, Member

4. Engr. (Alhaji) Hamed Olatunde Onipede, Member

5. Engr. (Mrs.) Tawa A. Williams, Member

(see Annexure II for the Report of the Steering Committee on the Senate Public Hearing on Constitutional Amendment (South-West Zone), December 2009).

2007 when I assumed office as Governor, I had convened a periodic forum called the Legislative Parley, organised through the office of my Special Adviser on Political & Legislative Powers Bureau.

The stakeholders and participants at this parley have been all our elected legislators at State and Federal levels, Local Government Chairmen and leaders of our State along with members of the Executive arm.

We have convened seven of such parleys and issued communique that have set forth the Lagos Agenda on matters of national importance including constitutional issues.

Therefore it is clear that this State and its Government have been prepared since 2005, till date to respond holistically to any issues of constitutional dimension, debate or amendment.

There had since been other constitutional review efforts which were however limited in scope. These had brought about three (3) sets of amendment to the Constitution, all of which were targeted at specific issues of importance at the time of exercise, mainly electoral reforms and the jurisdiction of the National Industrial Court.

On Thursday, September 15, 2011, the National Assembly again inaugurated a Committee on Constitutional Review aiming for a holistic review of the CFRN and further amendment to its provisions. This is expected to be the first major amendment that will cover several significant subjects in the Constitution.

However, this exercise does not aim at a general review of the Constitution; it seeks to proceed only on some selected areas and they are as follows:-

1. Devolution of powers

2. Creation of States

3. Geo-Political Zones

4. Traditional Rulers

5. Local Government

6. Land Use Act, NYSC Act and Code of Conduct

7. Fiscal Federalism

8. Immunity Clause

9. Mayoral Status for Abuja

10. Nigerian Police

My presentation therefore will be limited to these areas put up for consideration by the Senate, but my presentation is the aggregation of the harmonization of the 2005 and 2009 Lagos reports and position and the relevant parts of the various communique we have issued during our Legislative parleys.

While fuller details of our proposal on each of these subjects are attached I will here endeavour to give a summary of the recommendations we have put forward and the reasoning behind them.

Devolution Of Powers

The defining feature of federalism is the autonomy of each government that makes up the Federation.

Our political experience and long era of military rule has however resulted in the Exclusive Legislative List being loaded excessively in favour of the Federal Government at the expense of the State Governments.

The effect is that whilst the States are precluded from performing several important constitutional responsibilities, the Federal Government is equally unable to function effectively as it holds legislative and executive powers on matters of local concern which over-stretch its administrative and supervisory abilities.

It is therefore the position of the Lagos State that the principle of appropriateness (i.e., which order of government is more appropriate to deal with and effectively supervise a particular subject) should guide the sharing of powers between the federal and state governments.

We therefore recommend that the items on the exclusive list should be substantially reduced to reflect the principles of appropriateness and state autonomy.

In particular, State Legislatures should have or share jurisdiction on subjects like Police, Criminal Records, Prisons, Evidence, Establishment of Air and Seaports, Railways, Electric Power generation and distribution as well as the taxation of incomes, profits and capital gains.

Creation Of More States

It is the position of the Lagos State Government that the Nigerian federation does not at this time require the creation of additional states.

This view takes into consideration the huge cost which the administrative machinery and personnel of the new State will entail.

Most States are currently not sufficiently viable to justify further subdivisions.

Also we want to draw attention to the largely untapped administrative potentials of the existing local government councils, which can easily be used to cater for local or sectional interests.

Indeed, it may well be that the agitation for more inclusiveness in governance and for rapid development may be better  addressed by the creation of more Local Governments than it can be done by the creation of more States.

Recognition Of Six Geographical-Political Zones

The six geo-political zones represent an informal division of the Federal Republic of Nigeria along the lines of geography and ethnic sub-group.

Though not recognised by the Constitution, the zones have become representative of a political configuration of sort.

Thus, it is not uncommon to have political appointments and decisions recognising this loose arrangement. This has led to the clamour for the recognition of the zones in the CFRN.

However, we do not support the inclusion of the zones in the Constitution.

Recognition of a body in a constitution presupposes that it will have a definite purpose or responsibility and its composition, leadership and administrative structure will have to be defined.

Since the geo-political zones are not intended to be regional governments, their inclusion in the Constitution may cause unnecessary confusion as to their status or significance. Section 14(3) is comprehensive enough to reflect the federal character of the country and the need to promote national unity.

Role For Traditional Rulers

Lagos State Government recognises the institution of traditional rulership. However, traditional rulers do not derive their relevance and authority from the Constitution.

Unlike the Federal Government and State Governments which are created by the Constitution, and Local Governments which are created by laws made pursuant to the Constitution, the institution of Obaship predates constitutional governance in Nigeria.

Their appointment, removal and terms of office are regulated by the traditional norms of the people which are peculiar to each town/village and cannot be uniformly regulated by the Constitution.

Also, it should be noted that the idea of federalism involves the surrender to a central authority of only those functions which are best regulated and discharged in common.

It is therefore contrary to our federal intent to seek to unify diverse cultural traditional institutions in the Constitution.

Subjects of local peculiarity must be kept with the sub-national entities. Each state should therefore be encouraged to use their relevant Obas and Chiefs Laws rather than make it a constitutional matter.

LOCAL GOVERNMENT

The Nigerian Constitution makes it compulsory that Local Government Councils shall be the administrative organs of States. However, the duty to legislate the establishment of the Councils as well as their structure, functions and finance is left to the State House of Assembly (s. 7).

The Constitution also provides (schedule 4) that LGCs will participate in the socio-economic affairs of the State. Although Local Governments are guaranteed a share of the funds accruing to the Federation Account, their share is in fact required to be allocated to the relevant States for the benefit of the LGCs in accordance with the applicable State law (s. 162(5).

It is thus clear that while States are federating units of Nigeria (s. 2), the LGCs are intended as administrative structures to assist the State Governments in bringing government closer to the people.

In this context, any proposal to confer LGCs with autonomy, distribute funds directly to them, create a new legislative list and make them into federating units would be erroneous.

The use of number of LGCs in revenue allocation has also created an obvious imbalance to the disadvantage of some States. It is best to keep LGCs out of the Constitution and allow each State to create the number it considers appropriate for its local administration.

It seems therefore that the proper thing to do is to leave the Local Governments out of the Constitution or vest the entire responsibility for them in the States and amend the Constitution accordingly be deleting or amending as the case may be, all sections that introduce them into the Constitution such as 3(5), 7(1), 8, 167 and part of the First Schedule dealing with boundary descriptions.

Removal Of Certain Enactments From The Constitution

Currently, section 315(5) of CFRN incorporates certain enactments as part of the Constitution.

These are the National Youth Service Corps Decree, the Public Complaints Commission Act, the National Security Agencies Act, and the Land Use Act.

The section further provides that these enactments ‘shall not be altered or repealed except in accordance with the provisions of section 9(2) of the Constitution.’

This provision has served to freeze the affected enactments by making the process of their amendment the same as the one for amending the constitution.

It is therefore the position of Lagos State Government that the Land Use Act be separated from the Constitution and made applicable only to the FCT.

Land has always been and should remain a residual matter for the State Houses of Assembly to legislate upon, hence the Land Use Act should become Land Use Law of the States.

In this way, land legislation in Nigeria can be more flexible and reflective of changing practices and experiences through appropriate amendments by the State Legislatures.

Also, the NYSC Act, though of significance national importance, does not merit special status above other Acts of National Assembly.

However, National Youth Service should be made an exclusive legislative matter for the National Assembly to regulate.

As regards the Code of Conduct, we subscribe to the view that it should be retained in the Constitution as a minimum prescription applicable to all officials or public servants at all levels of government.

Each State should however be free to impose higher standards on its officials through State Laws or Service Regulations.

 •Position paper presented recently by the Governor of Lagos State, Mr. Babatunde Raji Fashola, san, at a public hearing convened by the Lagos State House of Assembly on the National Assembly’s proposal to further amend the Constitution of the Federal Republic of Nigeria, 1999.