Essay

By Prof. Mike Ozekhome, SAN

Introduction

IN the last episode, we examined the theme of the topic, posing the question: “How do we reform structurally?” and proffered two solutions: a brand new Constitution or an amended Constitution. We concluded by discussing the pros and coins of the first option.

In today’s installment, we shall look back at our past Experiments with constitutional democracy, contrasting the Constitutions we had during Colonial era with those of contemporary times. We then wonder about the way forward, proffering two options: A sovereign National Conference and a brand new Constitution, and conclude with a historical perspective through the experiences of Iraq, Kenya and South Africa. Enjoy. 

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 (Jacob O. Arowosegbe,in his article “Revisiting the legitimacy question of the Nigerian 1999 Constitution” Published online by Cambridge University Press:  13 September 2021).

In the words of Olu Ariwoola, J.S.C., as he held in the case of UGBA v. SUSWAM (2014) All FWLR (Pt. 748) Page 825 @ 863, “The Constitution is the heart and soul of the people. That explains why the Constitution commences (with the word) ‘We the people…’ all provisions in the Constitution were put in by the accredited representatives of the people.”

Many Nigerians including most of the erudite constitutional law lawyers have expressed serious reservation about the process leading to the making of the 1999 Constitution and the resultant lack of popular acceptability occasioned by the process of its making. Again, Chief Rotimi Williams, SAN, a foremost Constitutional Law Lawyer described the 1999 Constitution as a “document that tells lie against itself.” Professor Itse Sagay, SAN, categorically described the Constitution as a “fraud.” The erudite constitutional law lawyer and a foremost Professor of Law, Professor Ben Nwabueze, SAN, described the Constitution as an “illogicality”. That the 1999 Constitution is a “Unitary Constitution for a Federal System of Government.”

The Constitution was described as a fraud and a document that lies against itself at a seminar on the new Constitution organized by the Nigerian Bar Association, Ikeja Branch, on the 18th of June, 2009, because the Constitution purportedly stated in its opening recital that “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution.” Since the enactment of the 1999 Constitution, these pertinent questions have been asked repeatedly, 

1. “where and when did that resolution take place’’? 
2. “How did the people of the Federal Republic of Nigeria arrive at that firm and solid resolution purportedly expressed in the recital to the 1999 Constitution? 

Everyone or perhaps almost everyone in the Nigeria today accepts the fact that the Nation is faced with series of structural and systemic challenges, a good number of which are the products of the inadequacies of the 1999 Constitution. It is no longer news that there has been over concentration of power at the centre to the detriment of the federating units. Indeed, over the years the centre has been grabbing and grabbing powers at the expense of the federating units. The long years of military adventure in governance has not helped the situation. For the sake of comparison, the ‘1954 Constitution donated 43 items to the center’ in the Exclusive Legislative List, ‘45 items in the 1960 and 1963 Independence and Republican Constitutions; 66 items in the 1979 Constitution’ and ‘68 items to the center in the 1999 Constitution’ as amended.

THE WAY FORWARD FOR AN ENDURING POLITICAL STRUCTURE

It is worthy of note that since the 1999 Constitution came into force, attempts have been made by previous administrations to remedy the situation. Two national (Constitutional) conferences have at different times been held unsuccessfully. The first was by the Obasanjo administration in 2005 tagged the National Political Reform Conference; and the second was by the Jonathan administration in 2014, simply known as the 2014 National Conference. I was a participant at both Conferences, including the Vision 2009 Conference. Attempts have also been made (and continue to be made) to amend the Constitution. Some of the amendments were successful and some unsuccessful. In 2017 alone, 32 new amendments to the Constitution were proposed by the Senate. Only 5 succeeded at the end of the day. Till date, there are still various Bills pending before the National Assembly for amendment to different provisions of the Constitution.

TWO OPTIONS ARE AVAILABLE

As a way forward, two options are available to us to remedy the defects of the 1999 Constitution. The first option is to continue to amend the Constitution relying on the amendment clause in the 1999 Constitution. This option has its own challenges because the military after handing down the Constitution made it so rigid to amend, to the extent that getting an amendment is almost as difficult as getting a new Constitution. Despite its obvious short comings, this option is ever more appealing to those at the corridors of power because it gives them room to manipulate and promote their selfish interests.  No party in power wants to hear about the idea of a new Constitution because they are afraid of losing their existing positions. For instance, the number one item on the APC manifesto was the convocation of a Sovereign National Conference to fashion a new Constitution for Nigeria; but since they came to power, they have resisted every discussion on that.  

The second option is to jettison the Constitution completely in favour of a new one. I am more in agreement with this option. In his book ‘Forms of Constitution Making and Theories of Democracy’, (See A. Arato, ‘Forms of Constitution Making and Theories of Democracy’ (1995–96) 17 Cardozo Law Review 191, 194). Andrew Arato identified five different mechanisms of making a new Constitution in modern times: they are (1) through the Constitutional convention, (2) the sovereign constituent assembly, (3) the normal legislature, (4) the executive, and (5) an evolutionary process. 

On his own part, Schmitt, C, (See Schmitt, C, Constitutional Theory, trans Seitzer, Jeffrey (Duke University Press, Durham, NC, 2008) 94 Cross RefGoogle Scholar) in his book ‘Constitutional Theory, insists that for the Constitutional-making process to be considered to be fully democratic, it must pass through five stages. According to him, all previously constituted authorities must first be dissolved, followed by a popularly elected or acclaimed assembly with a sovereign power. The assembly then begins to function as the government on a provisional basis. Next, a new Constitution is drafted and offered to the people to be ratified in a national, popular referendum. As soon as the draft Constitution is finally ratified, the constituent assembly will be dissolved and a new government will be duly formed under the new Constitution.

A SOVEREIGN NATIONAL CONFERENCE?

We believe that this is what is borne in mind by those calling for a Sovereign National Conference (SNC). It is understandable why this call is loudest among those in the opposition, while those in power tends to turn a deaf ear to it, because if this is implemented, they are going to lose their positions. 

The truth of the matter is that if Nigeria truly wants to continue to be one indivisible entity and silence the various agitations for self-determination, it cannot shy away from the Sovereign National Conference. There is no amount of amendment of the present Constitution that can truly address the discontent and mutual distrust between the various ethnic nationalities. There must be an avenue where the people can meet and freely decide the way they want to stay together in a nation and be governed. Call it a Sovereign National Conference, Constitutional Conference, Constituent Assembly or simply National Conference, but the body must have the full power (sovereign power) to enact a new Constitution which can only be ratified by the people in a national referendum, devoid of any interference by any governmental authority. This is the only way we can stop running in a circle as a nation. 

A NEW CONSTITUTION: HISTORICAL PERSPECTIVES

Nigeria needs a new people-driven Constitution. It is not rocket sign. It has been done before by other countries.

IRAQ

THE CONSTITUTION OF IRAQ AND REFERENDUM

The first Monarchial Constitution of the Republic of Iraq came into force in 1925 and existed till the 1958 Revolution which established a Republic. 

The current Constitution was adopted on September 18, 2005, by the Transitional National Assembly of Iraq, and confirmed by a constitutional referendum, held on October 15, 2005.It was published on December 28, 2005, in the Official Gazette of Iraq (No. 4012), in Arabic original, and thus came into force. 

KENYA

There were three versions of the Kenya Constitution; with the most recent being the 2010 redraft. This replaced the 1963 Independence Constitution. This version of 2010 was presented to the Attorney-General of Kenya on 7^th April, 2010, officially published on 6^th May, 2010, and was subjected to Referendum of the Kenya people on 4^th August, 2010. It was voted for and approved by 67% of Kenya citizens. It was then promulgated on 27^th August, 2010.

SOUTH AFRICA

THE SOUTH AFRICA CONSTITUTION AND THE PEOPLE’S PARTICIPATION

After the elections of 1994, the new Parliament – working as the Constitutional Assembly (CA) – began writing the final Constitution of South Africa. On May 8, 1996, the Constitutional Assembly completed two years of work on a draft of a final Constitution, replaced the interim Constitution of 1993 by the year 1999. 

The objective to submit the draft to the Constitution court was to ensure that the final Constitution was legitimate, credible and accepted by all South Africans. The process of drafting involved many South Africans in the largest public participation programme ever carried out. Nearly two years later, representatives of political parties negotiated the formulations contained in the final draft and ignited an integration of ideas from ordinary citizens, civil society and political parties represented in and outside of the Constitutional Assembly. The Constitution therefore represents the collective wisdom and will of the South African people because it was arrived at by general agreement and consent of all South Africans. (To be continued)

THOUGHT FOR THE WEEK

“The first panacea for a mismanaged nation is inflation of the currency; the second is war. Both bring a temporary prosperity; both bring a permanent ruin. But both are the refuge of political and economic opportunists”. (Ernest Hemingway).

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.

-Nov. 27, 2023 @ 13:45 GMT |

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