Beyond The Making Of A Constitution

By Akido Agenro

With the National Constitutional Conference under the leadership of Justice Idris Legbo Kutigi that was inaugurated 17 April 2014 now going through the final stages of its schedule, the stage is set for the adoption of a fresh constitution. This initiative has become imperative, according to its proponents, to save Nigeria from the impending doomsday given the prevailing state of affairs where the nation wobbles from one crisis to the other and it’s currently enmeshed in a web of insecurity foisted on the society by religious fundamentalists on the one hand and ethic chauvinists/political demagogues on the other hand.

If the present attempt at constitutional renewal is successful then Nigeria will be counted among countries in the world with the highest turnover of constitutions. A cursory look at the history of constitutional making in Nigeria will reveal a predominance of constitutional conferences at the threshold of a new dispensation. There was the London Conference of 1950 that led to the 1951 McPherson Constitution which introduced the federal principle to the country. The other conferences were those that either ushered in independence or those that eased out the military from government and returned civil rule to the polity.

 In the meantime, it is of little surprise to political watchers that the ongoing National Confab is running concurrently with the Senator Ike Ekweremadu chaired Constitutional Review Committee [CRC], a group of legislators saddled with the responsibility of tinkering with the Constitution of the Federal Republic of Nigeria whose work is nearing completion, a third attempt in the series of amending the 1999 Constitution in less than 15 years of its existence in an endeavour to find a solution to the many evils troubling the nation.

Both groups have emerged in response to the clamour for amendment or an outright replacement of the present Constitution for that matter in adapting to an environment increasingly under the treat of insecurity, corruption, political upheaval, economic stagnation and political instability as many, both among the political class and the followers, have found it convenient to blame the woes troubling Nigeria on the Constitution. It’s a case of a citizenry that would rather blame their weaknesses on the document than admit their faults.

Instructively, it has never been established that constitutions become more effective on account of being subjected to rapid review or on the grounds of the volume. Thus, the Constitution of the United States which is one of the shortest written constitutions with just 7 articles and 27 amendments in its 227 years of existence has not in any way proved less effective than the longest written constitution, the Constitution of India which in its English version contains 444 articles in 22 parts and 118 amendments that was made 28 November 1949 and became effective from 26 January 1950.

However, it is an inescapable fact that until the entire citizenry cultivate the attitude of constitutionalism any document adopted as the legal framework to guide the conduct of men and women in the society will not be worth more than the paper on which it’s printed no matter the painstaking effort involved in making it. In other words, most Nigerians are yet to internalise the attitude of mind that conduce to the effective implementation of the constitution considering the prevalence of undemocratic and lawless actions of a large segment of the political class that is fast gaining ground instead of waning. In Nigeria, the Constitution is the whipping boy of politicians as everyone of them interprets its provisions to suit his own often selfish purposes to the detriment of the interest of the larger society yet would turn around to criticise it when things go wrong.  Most of them would rather adapt the Constitution to suit their habits rather than have it the other way round.

A number of instances of gross disregard for the 1999 Constitution undergoing review will suffice here. Firstly, the Constitution declares Nigeria to be a secular nation with no particular religion given preference as a state religion: “The government of the Federation or of a State shall not adopt any religion as State religion” [section 10], but in direct contravention of this provision 12 Governors of the federation have adopted Sharia as the main body of civil and criminal law in their states beginning with the former Zamfara State Governor, Ahmad Sani Yerima on 27 January 2000. Other states includes Kano State, Kaduna, Niger and Gombe in 2000, Sokoto, Katsina and Bauchi states in 2001, Borno, Jigawa, Kebbi and Yobe states in 2002.

The non-Muslim minority in the northern states did not take this anomaly lying down as the introduction of Sharia legal system to their states infuriated them to the point of demonstrating against the Islamic legal code during which hundreds of lives were lost including the October 2001 anti-Sharia riots that claimed over 100 lives in Kaduna. From the moment that these states commenced the implementation of Sharia law the area became a breeding ground for fundamentalism. Violent attacks on persons and property opposed to the application of the strict Islamic code which the government had all along strived to keep under check got the needed impetus from the prevailing environment under Sharia law, thus the stage was set for the emergence of the Boko Haram insurgence.

Secondly, for a long time the people from the South South Geopolitical Zone of Nigeria nursed a sense of injustice which derived from their marginalization in the scheme of things in the country. While the politicians were frolicking in Abuja, the people whose soil produced the bulk of the national revenue were getting choked with frustration. This fuelled agitation for resource control championed by leaders of the oil producing areas but which yielded no result, a situation that assumed a new dimension when the youth took to militancy, vandalizing oil pipelines and taking expatriate hostages.

In the search for a way out of the logjam, President Umaru Yar’Adua opted for the Amnesty Programme that offered to pardon all the young men who were involved in the crime of killings, vandalization of oil pipelines and kidnapping which had become rampant in the area. Through the amnesty programme, they voluntarily surrendered their arms at a point when their nefarious activity was threatening to shutdown all economic activities in the Niger Delta with dire consequences particularly for the oil sector, the mainstay of the nation’s economy. Unfortunately, however, beyond the palliatives offered in the Amnesty Programme, the administration of Yar’Adua failed to address the fundamental issue of barefaced marginalization and acute neglect that had ab initio informed the basis for the crisis in the Niger Delta.

Section 162 [2] provides that: “The President, upon the receipt of advice from the Revenue Mobilization, Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of states, internal revenue generation, land mass, terrain as well as population density; provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen percent of the revenue accruing to the Federation Account directly from any natural resources”.              It rankles that for 15 years after the present Constitution became operational, none among the three occupiers of Aso Rock Villa have found it worthwhile to forward a proposal for revenue allocation to the National Assembly in respect of fulfilling the derivation principle and set off the legislative process that would arrive at a percentage which in the estimate of legislators is a fair share of the oil proceeds that accrue to the Niger Delta given the groundswell of agitation that attended the environmental degradation the area has had to grapple with as a result of years of oil exploitation and exploration.

The failure of the government to implement section 162[2] of the constitution has remained one blot in successive regimes since the return of civil  rule in 1999, from Obasanjo to Alhaji Umaru Musa Yar’Adua down to Dr. Goodluck Jonathan who incidentally hails from the Niger Delta. It is a classic case of constitutional abuse both on the parts of the president and legislators hence it never featured among the items on the list of constitutional abuse compiled by lawmakers who often threatened to impeached any of the past presidents. Legal luminaries including the late Chief FRA Williams, who was appointed chairman of the Constitution Drafting Committee (CDC) in 1975, have called any other arrangement not secured through the instrumentality of an act of the National Assembly as an illegality.

Thirdly, another provision of the 1999 Constitution that is observed more in the breach in its application is section 7 which provides for democratically elected local government administration, but in practice the trend is that the powers of the third tier of government have been emasculated to the level that local government councils as they exist today in Nigeria are tied to the apron string of state governors with many run by the so-called caretaker committees that are appointed by the governors. An official of the Independent National Electoral Commission (INEC) recently lamented this ugly development when he observed that more than 500 of the total 774 local government areas in the country are administered through the aberration known as caretaker committee.

The Constitution made provision for a replacement of the president at a time when infirmity makes it difficult for him to effectively discharge his official duties and in the event of the death of a sitting president. Despite this provision, Nigeria’s political machinery almost grounded to a halt following the chicanery and bickering that were blatantly displayed by the politicians when in 2009, President Umar Yar’Adua fell into protracted illness and was admitted for treatment in a Saudi hospital before he eventually lost his life on 5 May, 2010.

The death of President Yar’Adua polarized the political class into two mutually antagonistic groups, with one favouring the vice president’s replacement of the late president whereas the opposing group in the usual Nigerian politician’s notoriety for circumventing due process frantically perused through the pages of the Constitution to see where precisely it was indicated that Goodluck Jonathan should assume the mantle of leadership of Nigeria upon the death of Musa Yar’Adua. To the shame of a nation, every politician took a stand not on the ground of principle but on the position that would swing to his favour. It was after much dissipation of energy that good reason was allowed to prevail and the former group had its way  through the ‘doctrine of necessity’ at the National Assembly.

Fourthly, the constitution has made sufficient safeguards for the diverse people in Nigeria to live in peace and harmony but for the lack of political will to faithfully adhere to its provisions. There is this common humbug among politicians that Nigeria should never be allowed to descend to the path of Rwanda, the central African nation where in 1994 inter-ethnic rivalry between the dominant Hutu tribe and their Tutsi compatriots turned the entire place into one large slaughter house. Contrary to this frequently expressed concern, the provision on federal character or quota system contained in section 14[3] which stipulates that employments and appointments in the federal civil service or any other government agency shall reflect the diversity in ethnic composition of the country, the situation on the ground at all the federal government offices, military and paramilitary formations across the country reveals the dominance of members of the Hausa/Fulani ethnic stock over other groups.

Fifthly, whereas section [3] expressly declares that: “For the purpose of promoting national integration it shall be the duty of states to – [a] provide adequate facilities for and free mobility of people, goods and services throughout the federation; [b] secure full residence rights for every citizen in all parts of the federation”, a number of state governments across the country have created indigene and non-indigene dichotomy whereby students in these state-owned secondary schools and higher institutions of learning pay different rate of school fees with the non-indigenous students made to pay a higher rate. In addition to this anomaly a few state governments not only deny non-indigenes employment but Plateau, Enugu, Sokoto and lately Abia States have gone a step further to sack non-indigenous staff in their state civil service.

Finally, the Constitution of the Federal Republic of Nigeria 1999 makes ample provisions for the free exercise of rights by every Nigerian citizen being that the country is founded on the principle of freedom, equality and nondiscrimination but unfortunately, one discovers that now and again the political leaders make obnoxious laws and formulate policies that deny a lot of people the freedom to enjoy their constitutionally assured fundamental human rights. The recently enacted Anti-Gay Law is one instance where the freedom of thought, conscience and religion guaranteed in section 38 is abused.

Funny enough, its these politicians who thwarted the Constitution and rendered it ineffective in meeting the challenges confronting the nation that have gathered either in person or through their proxies [called delegates] to design an effective document that will do away with injustice and other vices that have held the nation bound to injustice, insecurity, poverty and diseases. The task is as arduous as looking for a needle in a haystack. It is like asking the thief to find a stolen item. Beyond the making of a constitution is the issue of constitutionalism, the attitude of mind to abide by the provisions of the document and be guided by its content by all citizens.

In view of the foregoing, any exercise aimed at improving the subsisting Constitution amounts to wasting precious time and resources since it has not been proved that it’s the inadequacy of the Constitution in providing for any issue, whether social, political or economic that is responsible for the troubles confronting the nation at the moment. Let the politicians develop the commitment and the political will to faithfully implement the laws of the land as spelt out in the law books and all shall be well with Nigeria.

•Agenro wrote from Lagos.