13th November, 2012
By Babafemi Ojudu
The Macpherson Constitution of 1951 came amidst the protests and agitations of Nigerian nationalists who were strongly opposed to the preceding constitution and its limitations. Governor Macpherson constituted a committee to review the existing constitution and make recommendations on how to draft a “citizen-oriented” constitution. This produced the first elaborate involvement of Nigerians in the making of a constitution for their country. Upon the submission of the recommendations of the committee, the colonial government convened a Constitutional Conference in Ibadan, Western Nigeria, in 1950. This conference gave the leaders of Nigeria the opportunity to articulate their interests and ensure that their views are represented in the new constitution. It has been argued by scholars that the 1951 constitution “grew out of the final recommendations of this epoch-making Conference of 1950.”
The British subsequently accepted most of the recommendations of the conference and reflected them in the 1951 constitution. These included elected majorities in the central and regional legislatures and the power granted to regional legislatures to legislate on certain matters.It was also this constitution that introduced bicameral legislatures in the Northern and Western Regions which both had a House of Assembly as well as a House of Chiefs. Even though this constitution stripped the colonial governor of his reserve powers in dealing with the legislature, the governor was still “the symbol of internal policy formulation and implementation.” Thus, as I mentioned earlier, the executive still remained over-developed in relation to the legislature.
The Federal Constitution of 1954 was meant to end the quasi-unitary and quasi-federal system which had existed up till then under colonial rule and pave the way towards political independence for Nigeria. This constitution too was preceded by a Constitutional Conference held in London in 1953 involving all the Nigerian political parties. Given that the parties could not agree on all the critical issues on the table, the conference was continued in Lagos in 1954.These conferences led to the writing and coming into force of a Federal Constitution on October 1, 1954. There are three significant things about this constitution. First, the constitutional conferences that preceded the making of this constitution, despite the existence of federal and regional legislatures, point to the fact that both the colonialists and the Nigerian leaders recognised that the existing legislatures were incapable of ensuring the kinds of fundamental changes in the constitution and composition of Nigeria which were needed at that time. Like the 1951 Constitution that preceded it, the 1954 constitution was a product of a constitutional conference despite the existence of a legislature.
Second, the 1954 constitution resolved the issue of the legislative competence of the two tiers of the federation, the federal and the regional government, such that in matters of conflict, the federal law prevailed. Third, the composition of the federal legislature significantly changed. Only 9 of the 194 members of the House of Representatives, the federal legislature, were not elected. Also, the Western and Eastern Region Houses of Assemblies composed of only elected members.
It is again significant to note that despite the existence of elected representatives in the federal and regional legislatures, constitutional conferences were still held to determine the fate of the country with the drafting of the 1960 Independence Constitution. Constitutional Conferences were held in London in May and June 1957 and in September and October, 1958. However, at these constitutional conferences, political parties, which were, for most part, parallel to the three regions, represented the local interests of Nigerians. After Nigeria became independent in 1960, we still needed a Republican Constitution in 1963, which formally terminated the role of the Queen of England as the titular Head of State and the place of the Privy Council in England as the highest judicial authority over matters concerning Nigeria. The 1954, 1957, 1960 and 1963 Constitutions gave Nigeria a Westminster model of government which made the headship of the executive also members of the legislature.
In fact, with the 1957 and 1960 and 1963 constitutions, the head of government was elected from the legislature. In this parliamentary system of government, the legislature is where ultimate power resides. Therefore, the legislature can determine what can or cannot happen; the executive is answerable to the people through the parliament.
However, the 1979 Constitution changed all that. Even though the military supervised the process, a Constituent Assembly also met to consider the constitution which was drafted by the Constitution Drafting Committee. The military proposed a presidential system of government which was adopted by the Constituent Assembly. This new constitution that came out of this provided for a bicameral legislature, with a Senate and a House of Representatives. A constituent assembly and a constitutional conference also preceded the adoption of the 1989 and 1995 constitutions respectively.
The 1989, 1995 and 1999 Constitutions are essentially the same, save for some “no go areas” imposed by the General Ibrahim Babangida regime on the National Assembly in the short-lived Third Republic. However, no constituent assembly or constitutional conference preceded the imposition of the current 1999 constitution. In a sense therefore, the preamble of the 1999 contains a monumental lie when it states that, “We the people of the Federal Republic of Nigeria, having firmly and solemnly resolve …. Do hereby make, enact and give to ourselves the following Constitution.” “We the people” never met to make any such resolve. “We the people” did not “make, enact and give ourselves” the 1999 constitution. In fact, we did not see a copy of the constitution that the military regime led by General Abdusalami Abubakar imposed on us until the day President Olusegun Obasanjo was sworn-in on May 29, 1999. The late legal luminary, Chief Rotimi
Williams, (SAN), accurately referred to the 1999 constitution as a lie against itself.
The only thing that the people of Nigeria resolved to do in 1999 was to be done with the military – as they say on the streets, “anyway and anyhow.” And because we were so resolved, no one asked to see the constitution before bidding the military a long delayed goodbye. The legislature that came to be based on this constitution was therefore also not a subject of a popular resolve.
On the basis of this historical excursion on constitutional development in Nigeria in relation to the legislature, we can conclude that apart from the Independence (1960) Constitution and the Republic (1963) Constitution, all other constitutions in Nigeria’s colonial and postcolonial history have produced limited reformations and no transformation. Yet, the transformation occasioned by the Independence and Republican constitutions has remained inadequate, because they were focussed exclusively on: one, gaining independence from colonial rule, and two, securing internal sovereignty. These were crucial steps, though.
Nigerians needed to be independent from foreign rule. However, because our independence from foreign rule has only led to internal colonialism, after a few decades, many Nigerians realised that we needed a second liberation. But this realisation is not unconnected to the history that I have just outlined.
The legislative houses that were created in the colonial times and the colonial and postcolonial constitutional conferences and constituent assemblies involving Nigerians and political parties, as is evident from what I have said, involved only very limited sections of the country. Starting with the local elite in Lagos and Calabar, expanding to the elite in the south and eventually in the whole of the federation, including the north, and eventually involving only leaders of political parties. Even though these political parties represented large ethnic groups, they did not exhaust the wide array of identities and interests that needed to be represented. This is why all these produced only reformation and very limited political, and not fundamental, transformation.
There is therefore, the need for fundamental transformation of Nigeria. This transformation, as it is evident from the history of the constitutional and legislative processes that I have described, cannot be accomplished by any legislative house. At best, what the legislature can do is to ensure reformation. But what Nigeria needs is transformation. Who can argue that most Nigerians, except the few in power, are not happy with the way Nigeria is being run? Who can argue with the fact that there are terrible structural problems with the Nigerian federation that cannot be fixed by mere legislative initiatives and token reformation? Who can argue against the fact that when the foundation of a 36-storey building is faulty and the house is threatened with collapse, what you need is not a carpenter to help build a support pillar, but engineers and technicians to rebuild the foundation of such a threatened edifice?
Therefore, when you asked me to speak about “why the legislature has failed to provide a democratic review to the 13 years old constitution of the Federal Republic of Nigeria”, you are simply asking me to explain why even a token reformation has not been accomplished by the federal legislature in Nigeria. But if that is the key question, then I can simply respond that the National Assembly is working on that and then walk out of here!
As you know, the process of a review of the 1999 Constitution is ongoing, but the problem is bigger than that. What is going on now is not what Nigeria needs. It will not only be a waste of time, it will be a waste of resources and lead to “business-as-usual”. At best it may put a smile on the faces of those who want new states created for their aspirations. Imagine that foolhardiness , at this time.
When the foundation is faulty, you have to rebuild the foundation so that the house will not collapse. The federal legislature, as it is presently constituted, can never lead to national transformation. At best, it can only produce a measure of national reformation. But even this is not practicable in a National Assembly dominated by the members of the ruling party. A party with absolutely no discernible and defensible agenda, a party with little or no understanding of the fundamental challenges of the Nigerian nation. A party which concerns itself only with power and not with responsibility, a party that has produced the most backward, the most vacuous and the most embarrassing political leadership in Nigeria since the amalgamation of 1914. When such a party dominates the federal legislature, you cannot even hope for national reformation, let alone national transformation. Interestingly many of the members of the ruling party in private discussions ,often than not , agrees with this in whispers. Even when we move beyond a ruling party which represents only a symptom of the fundamental crisis of the Nigerian nation, the trouble with Nigeria is not a problem that can be solved by the legislature. The legislature can at best, hold things in place as decently as possible for a while. What Nigeria needs is to learn critical lessons from the constitutional and legislative history that I have just outlined. From the colonial to postcolonial times, every time Nigeria needed a new political architecture, we have always had a national talk-shop, either a constitutional conference or a constituent assembly. Even if all these have not produced the desired country about which we can all be proud, at least, they have shown that critical political restructuring of the Nigerian federation is too serious a task to be left to the legislature.
The challenge that Nigeria faces goes beyond law-making; it is a problem concerning the very legitimacy of the Nigerian federation as it relates to the consent of the people who are called Nigerians. Without restructuring the country in a way that all will be happy and proud to be Nigerians, we can only continue a deceit which continues to blow itself in our faces constantly. Consider the Boko Haram phenomenon and the permanent insurgency in the Niger Delta. Add to that the perennial slaughtering and bloodletting in the Middle-Belt by those claiming to be compatriots, and the glaring perplexity of the present leadership about what is to be done, and you will come to the conclusion, like many other patriots, that only a fundamental solution is needed to resolve these critical problems.
•Being text of a lecture delivered by Senator Babafemi Ojudu to the Political Science students of Obafemi Awolowo University, Ile Ife on 8 November 2012.