Do we need a new constitution?

The Patriots are eminent elder statesmen who have done it all and seen it all here and abroad. They have individual laurels to show for it. They came together as a group many years ago to speak with one informed and non-partisan voice in matters that affect our nation and us as citizens. As befitting their high level status, they do not speak often but when they do, they want the rest of us to listen. And we listen. The group is now led by that affable international statesman, Chief Emeka Anyaoku, former secretary-general of the Commonwealth of Nations.

A couple of months or so ago, The Patriots met with President Bola Ahmed Tinubu to impress upon him the urgent need to have a new constitution as a prelude to tackling the lingering issue of restructuring the country. There is evidence that the president heard them out. And there is evidence he has not bestirred himself in that direction. And that is understandable. A president faced, as Tinubu is, with citizens whose empty stomachs are rumbling loudly, would think more than twice about how a new constitution could prevent another round of hunger protests in our major towns and cities. 

The search for a perfect constitution or one that comprehensively responds to our social, economic and political problems as a nation, has so far had the fate of a needle in a haystack. The search has not been futile, but it has not been fruitful.

I have moderated my views about the relevance of a constitution that addresses, in the absence of a national conversation at the end of the civil war, the fundamental problems that cripple the structure of our federation and the nature of our federalism. We cannot write a perfect constitution, but we certainly can write one that moves us away from the anomaly of a unified or unitary federalism, what my good friend Professor Isawa Elaigwu calls military federalism, a phrase that I have cited often here and elsewhere. 

A constitution serves two fundamental purposes in a polity. One, it is the supreme law in the land. All laws made by parliament derive their relevance from it. And that is why a law that breaches the provisions of the constitution dies on arrival. Two, it is a binding social contract that prevents the polity from degenerating into a jungle of two-legged creatures with might and wealth becoming the tools for the mighty and the wealthy to oppress the weak and those whose tattered pockets are absent of Naira notes. Welcome to constitution 101.

Our political problems revolve around two fundamental issues, namely, the structure of the federation and the nature of our federalism consistent with best practices in that form of government. No two federal systems are the same in  particular but all of them give to each federating unit a measure of autonomy that allows each of them to develop at their own pace. For reasons of their individual history, federating units are at different stages of educational, social, economic and political development. Our unified federalism mimics the military command structure. This is anathema to the nature and the nuances of federalism. It has turned the concept of federalism on its head. 

Federalism was an informed choice by our redoubtable independence warriors during the independence talks with our British colonial masters in the fifties. The great Zik put it rather nicely in his contribution to the talks, to wit, if a country is multi-ethnic, multilingual and multi-religious, federalism is their best option. Our leaders accepted the three regions as the federating units of the federation. Each region was big enough and rich enough to take care of its basic social and economic needs. The structure of the federation was identified as a critical problem before and after independence. This problem has since been solved by the generals who decreed the four regions first into twelve states and thence to the current 36 states. We still want more. The political conference convened by President Goodluck Jonathan in 2013 recommended twelve more states.

Building a nation, or as in this case, to quote Chief Obafemi Awolowo, turning our mere geographic expression into a leading nation in Africa and the pride of black people globally, is a work in progress. It is a tough and rough task. The generals approached this task with one solution, a new constitution birthed by each military administration. Our independence constitution yielded place to the republican constitution of 1963.

Our first military rule, the late Major-General J.T.U. Aguiyi-Ironsi, issued decree 34 of May 24, 1966, replacing our federal system with a unitary system of government because he believed that most Nigerians wanted “one government, not a multitude of governments.” He misread the entrails of the chicken and came to a wrong conclusion. When his government fell, his successor, Lt-Col (as he was then) Yakubu Gowon reverted the country back to federalism.

In the military mind set, the problems of the first republic had more to do with the constitution rather than with those who operated it. To be clear, neither the young major who struck on January 15, 1966, nor Major-General Muhammadu Buhari and his cohorts who sacked the second republic cited alleged flagrant constitutional breaches by the politicians as their reasons for replacing the ballot box with the gun. 

General Gowon ranked a new constitution as number five in his nine-point agenda he planned to complete before he left the stage for the civilian politicians. He never got around to it, but he did effect a restructuring of the federation from four regions to twelve states. He did what the British refused to do. It was the second time the federation was restructured after independence. The first was the creation of the Mid-West region by an act of parliament in 1963.

The man who took the knife to the jugular of our republican constitution was the late General Murtala Muhammed, who succeeded General Gowon as head of state in a July 29, 1975, coup that toppled the latter. He almost immediately appointed a 50-man constitution drafting committee, CDC, headed by Chief Rotimi Williams, the constitutional legal luminary of his generation. Chief Obafemi Awolowo refused to serve on the committee for reasons for which he could not be faulted. So, 49 wise men did the job – and they did the job. 

In his address to the committee, Muhammed said the Supreme Military Council wanted “An Executive Presidential system of Government in which the President and Vice-President are elected, with clearly defined powers and are accountable to the people.” We had a system in which the president was the head of state and the prime minister the head of government. It was similar to what obtains in India. But the generals wanted the two offices fused into one to avoid possible  power tussle.

The 1979 constitution resulted from the combined work of the CDC and the constituent assembly. It was the first constitution that truly qualified as the people’s constitution in that the partly appointed and the partly elected members of the constituent assembly represented the people. With the new constitution, Nigeria turned away from the British parliamentary system to the American-type executive presidential system. As the Warri likes to say, we don try.

That constitution became the basis for other constitutions by other military rulers. But good as it is, in my view, it failed to address the festering problems of the structure of the federation and the nature of our federalism. It did not remove the anomaly of a unitary federalism in which the states, once described by Awolowo as glorified local governments, are treated not as constituent units of the federation but rather as administrative units of the federal government. (To be concluded)