Essay
By Prof. Mike Ozekhome, SAN
INTRODUCTION
TWO weeks ago, we took a break from this series to discuss a very burning issues of the judiciary titled: THE PLATEAU STATE LEGISLATORS’ DEBACLE: BETWEEN LAW AND JUSTICE. In our last discussion on this tranche, we considered true federalism as a specific panacea to resolving the problem of Nigeria. We also examined the ‘Asian Tigers as models of rapid economic transformation/industrialization. This quest also took us to Europe and the U.S. After which we considered the Big Picture. Today, we shall continue our search for solutions through the options of either a brand new or amended Constitution. We will then take a trip down memory lane to our experience under colonial rule. Enjoy.
A BRAND NEW OR AN AMENDED CONSTITUTION?
Many solutions have been suggested, with constitutional amendment or reenactment top of the list. The reason is obvious: it is a country’s birth certificate; the foundation, basis or as we call it in law, the grundnorm. In this regard The 1999 Constitution is the product of the military led by General Abdusalami Alhaji Abubakar. The explanatory note to the said Constitution is worth considering as it explains the purport of the Constitution. The explanatory note to the 1999 Constitution (the subject matter of this article), states thus: “The Decree promulgates the Constitution of the Federal Republic of Nigeria 199 into law and provides for the said Constitution to come into force on 29th May, 1999.”The explanatory note above contains extra information to the effect that the explanatory:“…note does not form part of the above Decree but is intended to explain its purport.”The term “promulgate” means to spread an idea, a belief, etc. among the people. Whose beliefs and ideas are the military spreading and at what point did this idea or belief come into force? It is pertinent to note that the 1999 Constitution divested the military over the governance of Nigeria and re-enforces the original ideas and beliefs of the people at the time they got independence.
Prof. Ben Nwabueze on ‘Further Thoughts on the Nigerian Constitution and Polity, noted that the declaration ‘we the people of the Federal Republic of Nigeria [are] one nation under God’ is only an aspiration and not a reality. The learned author stated that the statement implied that “we are one people” and submitted that not only are we not one people, we are not yet one nation. Looking at the prevailing challenges confronting the unity of Nigeria now, one will agree with the learned author. The country has been polarized now. However, the preamble is the ideas being spread at a time the nation was emerging from dictatorship. The Abacha regime was the precursor to that declaration. That idea was promulgated at a time the nation was emerging from the dungeon and when national interests were long forgotten. The preamble to the 1999 Constitution sheds light on how the entire Constitution should be construed. The Constitution is for the promotion of good governance and welfare of all persons in Nigeria, on the principles of freedom, equality, and justice, and for the purpose of consolidating the unity of Nigerians. I agree with the views of the mythic that there was never a time Nigerians gathered to fashion the 1999 Constitution. The 1999 Constitution was promulgated by the Military and since it came into force, the people through their democratically elected lawmakers have not abolished or suspended the operation of the Constitution. What the people have done are piecemeal amendments. By usage, however, the people have adopted the ideas in the 1999 Constitution. Thus, it is safe to submit that the expression “we the people” is a reality.
In analysing this phrase ‘’we the people’’ it will be necessary to have an amplified and microscopic view of the component words of the phrase. In doing justice to them it will be proper to begin from the first word in the phrase viz: WE: The word “WE” is a pronoun that is used to denote one self and another or others as the case may be. This therefore implies that for the word “WE” is referring to not just a person but a group of persons who are most likely in agreement and having the same motive. Anything other than this will amount to the misapplication of the pronoun “WE”. This analysis also implies that wherever the pronoun “WE” is used, it connotes that the word emanated from the collective ideology of a group of people. Conversely, the application of the word “we” in the preamble of the Nigerian constitution connotes that the constitution is a document that emanated from the Nigerian people and that even though every Nigerian did not directly contribute to the making of the constitution, a vast percentage of the Nigerian populace, through their representatives, was involved. Even though this position has so much criticisms, this is the general view of the word “WE”.
THE PEOPLE: Whenever the phrase THE PEOPLE comes to mind, another thought that follows is that, a group of persons are involved. The phrase which connotes that a group of people are involved, is also used to refer to a given set of persons who share the same ideology. The implication of this phrase in the preamble of the 1999 constitution of the Federal Republic of Nigeria and other democratic states of the world is that, the Constitution is for the people, (i.e)the Constitution, having a root in the people, is formatted by the people to be a standard of conduct for the people. This is what is meant by the phrase THE PEOPLE. This in another hand will also imply that, only the particular people that were referred to, are the people who have business to do with the subject in question.The tendency to concentrate power in the chief executive, while tenable in advanced countries with all the institutionalized means of checking dictatorship makes the system vulnerable in an African setting. Thus, any system that reinforces concentration of power in one person will provide fertile ground for breeding dictatorship. One of “the perils” of presidentialism is political gridlock resulting from competing claims for legitimacy by the President and the Legislature which inevitably slows down governance process. This serves as another factor that supports a re-consideration of presidential system in Nigeria.
No doubt, the separation of power provided in the Constitution is to curb the tendency of tyranny and to reduce the work load of one-arm of government. The expectations of the constitution makers are for cooperation between the three arms of government.However, the expectation turns to be a mirage when the relationship between the executive and the legislature is frosty. According to Maman & Dahiru, this can make or mar democracy. The relationship between the two arms of government has impacts on democracy as a system of governance. It can facilitate and deepen democracy from which the nation can benefit immensely. A frosty relationship on the other hand, can lead to slow and even at times bad governance. The struggle between the 8th National Assembly and the executive arm almost degenerated to superiority contest. With regards to cordial relationship between legislature and the executive, the parliamentary system has this enduring attribute. This is because of the fusion of both. As a result, it will not be difficult for the legislators to explain clearly government policies because the interface between the executive and the legislature will make them to be on the same page. Thus, the switch to the parliamentary system will not only trim the government but also cure the ills of dissipation of energy by the executive and the legislature on mundane issues. In spite of the alluring attributes of the parliamentary system, one cannot dismiss is fundamental weaknesses. One of such defects is that the government is not as strong as expected. The government can be brought down within days through a vote of no confidence in the parliament which is regarded as the crown jewel of parliamentary democracy. It is believed that such flexibility will not augur well in a polity with no strong sense of nationhood like Nigeria.
REWORKING NIGERIA’S FEDERAL STRUCTURE THROUGH A NEW CONSTITUTION
Complaints about the federal structure go as far back to the pre-independence period, when minority groups felt dominated by majority groups.
The Willink’s Minority Commission of 1957, which looked into the matter, recommended the inclusion of a bill of rights in the Independence Constitution, to guarantee basic fundamental rights; rather than creating states for minority groups. But by 1963 the carving up of the country had begun, and eventually by 1 October 1996 there were 36 states.The creation of states grants access to public offices and infrastructure for local elites. It also creates new majority and minority groups in the new states. Unviable states have proliferated, dependent on the common pool revenues and unable to fund their bureaucracies.Scholars have attentively stated that the fiscal arrangement, especially the formula for sharing the common pool account, is not an incentive for states to produce revenue. States angle to get more revenue share from the central pool rather than generate revenue within their territories.
State governors make the complain that the share of revenue that goes to the national government is too large, making competition for offices at the center too intense. They call for revision to grant more revenue to the states. Some of the governors also call for more responsibilities, to get access to ways of generating revenue. Some governors believe that decentralization, when extended to policing, would also improve security. In not too far back, everything in the political space of Nigeria is fraught with some damning or potentially disturbing undertones which keep the citizenry in perpetual frenzy. Our case is worsened by the fervency and maddening frequency of messages of doom, conflagration, pestilence, and all sorts of conspiracy theories and morbid predictions churned out on the ubiquitous social media networks. If it were possible to do a holistic national diagnostic on all the estimated 215 million Nigerians within a space of 48 hours that it took the latest special presidential convention of the ruling political party, the barometer would have crashed into nether regions, making our laboratory technicians collapse in bewilderment.
Such is the weight of our fears and follies that we continually anticipate the catastrophic, even when we look up to the Supreme Being for the miracle of surviving another year. Yet, our leaders continue to act and speak as if they are in control of the very air we breathe, and thus have the capacity to moderate the unknown or mitigate the frightening.
THE NIGRERIAN EXPERIMENT WITH CONSTITUTIONAL DEMOCRACY
THE COLONIAL ERA
Nigeria’s Constitutional history can be broken into two main eras: the colonial and the post-independence eras. The colonial era commenced from 1914 when the colony and protectorate of southern Nigeria was merged with the protectorate of Northern Nigeria and ended in 1960 at independence.
COLONIAL CONSTITUTIONS
During this period, Constitution making was carried out by the colonial power acting by and through the British officials in Africa. In this era, we had the Clifford Constitution of 1922; the Arthur Richard Constitution of 1946; the McPherson Constitution of 1951; and the Federal Constitution (otherwise known as the Littleton Constitution) of 1954. That was before Independence in 1960. We then had the 1960 independence Constitution and the1963 Republican Constitutions. None of the Constitutional arrangements during the colonial era, including the Independence Constitution of 1960, derived from the popular or sovereign will of the peoples of Nigeria.
THOUGHT FOR WEEK
“We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force”. (Ayn Rand).
LAST LINE
God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc. kindly, come with me to next week’s exciting dissertation.
A.
-March 18, 2024 @ 13:19 GMT|
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