Constitutional amendment: Why bother? - By: Eugene Enahoro | Dailytrust

Constitutional amendment: Why bother?

An ever increasing number of Nigerians believe the solution to the nation’s burgeoning problems lies in changing the constitution. While some prefer piecemeal amendments, others insist on a completely new constitution.

There is consensus that the “military decree for civilian administration” imposed in 1999 and referred to as a “constitution” is defective in philosophy, spirit and content. In truth, it was never designed to entrench effective democracy or human rights, let alone a guarantee to a fair share of the nation’s wealth. It has been posited that Nigeria’s seemingly intractable problems have more to do with the character of those operating the constitution than its defective provisions.

Unfortunately, upon return to democracy in 1999, military autocrats transformed into democratically elected ones with scant regard for man’s rights or constitutional limitations. Nevertheless, the problem is not one of assessing leadership. Good or bad leadership is largely a matter of opinion, whereas breach of the constitution is a matter of fact. In the various discussions concerning constitutional amendment, a pertinent question is being overlooked. Why waste time and money altering, amending or replacing a constitution that is routinely breached and nobody is forced to adhere to?

Constitutional breaches are routine and serial at federal, state, and local government levels, but are never thoroughly investigated let alone prosecuted. Other African nations take constitutional breaches seriously and they lead to convictions or at least the apportioning of personal responsibility. To paraphrase South Africa’s acting Chief Judge who sent to jail a former President, Jacob Zuma, for 15 months; “If with impunity, those holding political office are allowed to decide which orders they wish to obey and which they choose to ignore, our constitution is not worth the paper upon which it is written.”

In Nigeria, there are no constitutional courts to adjudge whether government actions conflict with constitutionally guaranteed rights and freedoms. The Nigerian judiciary has proven itself neither courageous nor principled enough to enforce due process in governance. Suffice to say the structure of the Supreme Court, their perceived bias in favour of government wishes and the process for appointing the chief justice of the federation, hardly lends itself to the confidence that constitutional provisions limiting executive powers will ever be enforced. Present-day constitutional beaches range from governors “security votes” to use of the military against civilians, non-adherence to the budget and encroachment upon human rights.

Several lawyers have faulted the Chairman of the Senate Committee on the Review of the 1999 Constitution who claimed that the National Assembly lacked the power to birth a new constitution. Legal luminaries avow that while Section 9 of the constitution empowers lawmakers to amend the constitition, Section 4 empowers them to make laws for peace and order. The marked absence of peace and order nationwide requires the legislature to constitutionally enact laws which create a constituent assembly to foster a less divisive, more equitable, amenable and agreeable constitution. The issues which need to be addressed surround the deep rooted systemic bias against minorities; reforms of electoral processes; revenue allocation formula; state policing; political restructuring; and the need to reduce the overall cost of governance. As for the increasingly bellicose calls for restructuring by ethnic nationalities, separatist agitations did not start under the current administration. They are age-old symptoms of Nigeria’s deep-rooted colonially imposed structural problem.

Previous constitutions tried to address these problems, but their provisions were always preached by subterfuge. Perhaps if constitutional provisions for “federal character” had been strictly adhered to rather than flouted with impunity as is currently the case, the situation would not have deteriorated so appallingly. The National Assembly must bear responsibility for the prevalent widespread of unconstitutional actions by the executive. They have bungled their primary duty of  ensuring adherence to the constitution in all its ramifications and limitations. In particular, the rubber stamp senate has serially failed to check unconstitutional actions by the executive. There is scant belief that they can be trusted to hold any future executive to the provisions of any new or amended constitution.

Elder statesmen assert that the 1963 constitution is the only legitimate point of reference, and any constitutional reforms must take into account its “essential provisions”. They sentimentally remember the “good old days”, and are altruistically interested in regionalism as a means of enabling efficient administration, reducing cost of governance and facilitating socio-cultural-political cohesion. On the other hand, others  mistakenly and selfishly believe the 1963 constitution gives every region the right to its own resources. This is not the case. Item 25, Part 1 of Section 69 of its first schedule states that mines, minerals, including oil fields, oil mining, geological surveys and natural gas are on the exclusive list. It is no secret that this provision is currently being breached and certain minerals located in Northern parts of the country are privately owned and not on the exclusive list.

Although processing the variety of motives and plethora of suggestions concerning constitutional reform may appear overwhelming, it would be foolhardy and dangerously naive for anyone to think that insecurity, ethnic and religious tensions will end if current constitutional arrangements remain in place. Christians are at a loss to explain why the 1999 constitution mentions Islam 28 times and Muslim 10 times, while Christianity is not mentioned once! Deep seated grievances and feelings of resentment, many of which are inflamed by political actors, must be addressed. Provisions concerning secularism and the total rejection of political intolerance, injustice, deceitfulness, nepotism and inefficiency by political office holders must be codified and enforced, otherwise peace and prosperity for all may well continue to prove elusive.

To paraphrase the Martin Luther King Jnr: “Injustice anywhere is a threat to justice everywhere”, in Nigeria it is a case of “injustice everywhere is a threat to justice anywhere!” Successive governments have governed unjustly, with minimal adherence to the provisions of whichever constitution they operated under. Adherence to the constitution has never been obligatory. So the question remains; why bother to amend a document which provisions are never, and indeed can never, be enforced?