Issues in the constitution review process

THE National Assembly has just begun, yet again, another attempt to review the Constitution. I had the privilege

of chairing the Citizens Forum for Constitutional Reform (CFCR) for six years. This coalition of over 170 civil society organisations has been devoted to the task of creating a legitimate process through which Nigerians can get the Constitution they deserve. The CFCR has been engaged in advocacy for constitutional reform since 1999 for two main reasons.

The first is that our Constitution tells a lie that the Nigerian people gave it to themselves. The fact of the matter is that the Constitution does not emanate from the people but from a military dictatorship. The 1999 Constitution is in fact Decree 24 of 1999 enacted by General Abdulsalam Abubakar after a Committee chaired by Jus- tice Niki Tobi consulted mainly military administrators, emirs and chiefs and top civil servants round the country. Those consulted therefore were the rulers not the people. Nigerians were not consulted. The Nigerian people did not debate and negotiate the issues in the Constitution. The Nigerian people did not author it; neither did they approve it in a referendum. It is for this reason of the process through which it was procured that it lacks legitimacy. The CFCR has therefore always been of the view that a thorough process of people-driven constitutional review is necessary and that this can best be done by an elected constituent assembly emanating from free, fair and credible elections. This is what we call the process issue.

The second issue is that of content. The 1999 Constitution has the deficit of not responding to persistent demands for a political restructuring of the country. The demands have been for curbs on the powers of the federal government and the enhancement of the powers of states and local governments. It is clear that after three decades of military rule, Nigerian federalism had been destroyed and sacrificed on the altar of over-centralisation. Nigeria’s geopolitical realities have been completely modified through the subordination of state governments to the federal government. In federal constitutions, the federal and state governments all have constitutionally defined areas in which each level of government is sovereign as well as areas where both levels have concurrent authority. According to the “father” of federal theory, K. C. Wheare (1963), in federal regimes, neither the federal nor regional governments are supreme; the constitution is the only supreme organ.

According to Section 4(5) of the 1999 Constitution however: If any law enacted by the House of Assembly of a State is inconsistent with a law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.

There is therefore a clear hierarchy between the two levels of government. In terms of the legislative powers for the different levels of government defined in the Second Schedule of the Constitution, the longest list is the exclu federal legislature can pass laws on. The exclusive legislative list has 68 items, two more than in the 1979 Constitution. The concurrent legislative list by comparison has only 30 items. It includes all sorts of powers including police, prisons, even marriage, excluding marriage under Customary and Islamic Law. State governments cannot borrow money abroad without federal approval (item 7) and they cannot regulate labour matters (item 34). Direct taxation – incomes, profits and capital gains is an exclusive federal preserve (item 59). Even the appointment of judges in the state service, are to be made by the state governor on the recommendation of a federal executive body, the National Judicial Council. State governments do not have exclusive competence in any domain. The failure of the 1999 Constitution to address demands for political restructuring and the redistribution of powers has left all the problems of Nigerian history related to fears of political domination intact. I am often tempted to think that it is good that the state governments are emasculated by our Constitution because they are so corrupt and authoritarian in their ways and there is no one to check mates them at the state level. The separation of powers that works to a certain extent at the federal level is totally absent at the state level. State governors are tin gods and each and every one of them negates the constitutional provision for a democratic local government system. In my moments of lucidity however, I believe that it is not because a good system is operated wrongly that we should give up on the good system itself. Nigerians believe in federalism and federalism is good for Nigeria. We should profoundly review the Constitution to address the problem of over-centralisation of power.

The Constitutional Review process is however faced with two challenges. The first is that the review process is being derailed before it starts by the Jonathan Administration. The President has established the Belgore 22-per- son Committee to propose issues of constitutional consensus that the President can propose to the National Assembly. The Committee has however been mired in squabbles over a controversial proposal to extend presidential tenure from four to seven years. As President Jonathan and his team are perfectly aware that it is exactly the same proposal that incapacitated the Clement Ebri and Yusuf Mamman Committees under the Obasanjo regime, it is clear that he has made a choice to sacrifice serious constitutional review process in favour of an anticipated tenure elongation.

The second challenge is the National Assembly. The quality of the National Assembly is low, many were not properly elected either in their primaries or in the elections, they are mostly selfish people focused on pecuniary deals and controlled by god fathers. Can this motley crowd of compromised and selfish people give up their constitutional prerogative and allow for the election of a constituent assembly to address the fundamental issues, certainly not. Can they do it themselves, I doubt it. They are more likely to focus on totally irrational issues such as creating more states, not because we want them or we can afford them but because they may make more money from such issues. We Nigerians don’t have the National Assembly we deserve.

Historically, constitutional making for democratic regime is considered too important a task for parliament. While small constitutional changes by parliament are normal in democratic systems, major reviews are normally con- ducted by a constituent assemblies that have a specific popular man- date to carry out the national task. As we whining and moaning about our politics, the time might have arrived to take bold steps in sorting out our fundamental issues that afflict our polity. The path leading to a democratic constitution with legitimacy must be people driven as was the case in France, Switzer- land, South Africa and Kenya