By Aare Afe Babalola, SAN,
Recently, the National Assembly announced the commencement of a process for the amendment of the 1999 Constitution.
The Senate Ad Hoc Committee on the Review of the 1999 Constitution, headed by Deputy Senate President, Ovie Omo-Agege, by a Notice, called for memoranda from the general public, executive and judicial bodies, civil society organisations, professional bodies, and other interest groups for further alterations of the 1999 Constitution (as amended) on a myriad of matters including gender equality, federal structure, and power devolution, local government autonomy, public revenue and revenue allocation, Nigerian Police and other Nigerian security architecture, comprehensive judicial reforms, electoral reforms to strengthen INEC, socio-economic and cultural rights, strengthening the independence of oversight institutions, residency and indigene provisions, immunity, the National Assembly, state creation, among others.
Amendment of the 1999 Constitution is not the answer
While it is indeed true that no set of rules, including the Constitution of a nation, is etched in stone and incapable of amendments to conform to present realities, the peculiarity of the 1999 Constitution is inherent in the fact that it is not a product of the will of the Nigerian people; but rather, foisted by the military government as a flagship rulebook for Nigeria’s venture into democratic governance.
The sour implication, therefore, is that no extent of amendment, however good-intentioned, can impose or confer the legitimacy and massive acceptability which the 1999 Constitution lacks and which any true constitution connotes. As it is, the 1999 Constitution is not people-centric and, therefore, does not reflect the ethno-cultural and socio-political diversities woven into the fabric of Nigeria’s existence.
None of the previous amendments to the 1999 Constitution have conferred any wide acceptance to the Constitution nor given the component units in Nigeria the satisfaction they expect. In the light of the recent announcement for a fresh amendment, many stakeholders, including the Northern Elders Forum, NEF, have decried this proposal. The Forum reportedly noted that:
“Nothing fundamental or of any value has come out of these grand schemes to exploit our collective desire to address our political and economic fundamentals. This National Assembly is also following suit, and it should not be encouraged on this path… Nigeria’s future rests largely on its willingness to address major constraints to equity and justice, a functional structure, consistent good governance, security for all citizens, a credible electoral process, growing understanding between and among all groups and an economy that grows and narrows inequalities between classes and regions.”
In similar terms, the Eastern Consultative Assembly, ECA, discountenanced the National Assembly’s proposed amendment, recommending a constituent assembly that would fashion a people-oriented constitution. The ECA reportedly noted that: “The Constitution amendment project embarked upon by the National Assembly, aside from serving as a conduit pipe to siphon scarce national resources, will not, in all sincerity, serve any useful purpose whatsoever.
The unitary 1999 Constitution ought to be discarded and replaced with a people’s constitution. The confidence of the people needs to be restored in our Constitution, only when the people feel part of the making of the constitution. The military crafted, superintended and supervised the 1999 unitary document that has proven deficient and faulty through practice.”
The reason why no amendment of the 1999 Constitution will cure its inherent defects is simple: The Constitution itself is not designed to be capable of major reforms. For instance, there have been proposals from many quarters for Nigeria to operate a unicameral legislature, instead of expending tremendous national resources in operating a bi-cameral legislature.
As rightly argued, this will reduce recurrent expenditure in budgetary allocations and engender productive use of these public funds to other matters of national importance. Under the current structure, any proposal or Bill from any quarters, be it from any private or public institution, or even by a goodhearted member of the legislature, to reform the Nigerian legislature will never see the light of day.
By the very provisions of the 1999 Constitution (as amended), specifically Section 9(2), any amendment in the Constitution must be ratified by the votes of not less than two-thirds majority of all the members of each House of the National Assembly i.e. the Senate and the House of Representatives. After it is passed by the requisite majority of the Houses, it must then be approved by resolution of the House of Assembly of not less than two-third of all the States in Nigeria. At present, there are 36 States in Nigeria, therefore, the proposed amendments must be passed by resolutions of the House of Assembly in at least 24 states.
After this tedious process, the proposed alterations must then be forwarded to the President of the Federal Republic of Nigeria for assent and if refused, it is then returned to the National Assembly, and the National Assembly is empowered by the Constitution to overrule the veto of the President.
Therefore, in light of these constitutional provisions, any groundbreaking reform in the 1999 Constitution, particularly those which are capable of limiting the powers and/or money-siphoning capacity of elected representatives or political appointees, will be met with stiff opposition – and expectedly so. The current structural arrangement on which Nigeria is built and administered have both political and economic deformities. Politically, Nigeria’s federal system is more unitary than federal; it is unbalanced and unsustainable.
Power is over-concentrated at the centre at the expense of the other two levels of government (state and local government). Second, the 1999 constitution upon which the country is presently running is basically a military, unitary and imperfect constitution that does not have much bearing to the will or wish of the people.
Third, there is also the lack of social justice or the rule of law; while the tussle for power is not motivated by service, rather by self-accumulation of wealth and greed by the elites. In economic terms, production is what drives conventional capitalism. In the case of Nigeria, politics, corruption, political patronage and unproductive consumption are the driving forces of our economic system.
As summarily noted by Nsongurua Udombana, LL.D, “the 1999 Constitution has the imprint of authoritarianism written all over it, with no consideration to the genuine desires of the Nigerian people. There was not even the civility of a Constituent Assembly, let alone a referendum, thereby making the “We the people” in the preamble a lie and fraud. It is an illegitimate document and will remain so notwithstanding the number of amendments, though it may make for a good POL 101 Course on ‘The Making of an Undemocratic Constitution”
Nigeria deserves a new Constitution
Clearly, the 1999 Constitution has never been the answer to Nigeria’s socio-political and ethnocultural realities. In fact, the Independence and Republican Constitutions of 1960 and 1963, respectively, best suited the ideals of the Nigerian people in the face of the British marriage of convenience.
Knowing that Nigeria contains more than 250 ethnic nationalities with different cultures, languages, religions and customs, Nigeria’s founding fathers, after sitting together in Lancaster House in London for almost 10 years, fashioned out a constitution that united the different ethnic nationalities
This was one of the main reasons why both the 1960 Independent Constitution and 1963 Republican Constitution worked well before the military made a forceful incursion in governance following the military coup of January 15, 1966.
Nevertheless, there is a need for urgent restructuring through the platform of a Sovereign National Conference ahead of the 2023 general elections. This will create an avenue to effectively discuss and resolve paramount issues of resource distribution, insecurity, effective political representation, among other contentious matters. It is also paramount that the Conference considers the inefficiency of the 1999 Constitution in addressing the ethnocultural and socio-political diversities in Nigeria.
No doubt, the only Constitution that will endure is the one that is truly expressive of the supreme will of the people. There is a need to revisit the structural foundation upon which Nigeria’s political future, ethnocultural unity, and economic sustenance are premised. Nigerians must have a voice in the Constitution which governs them, otherwise, the propensity to fall into more chaos is more within-reach than ever.