Essay
By Mike Ozekhome, SAN
INTRODUCTION
SCHMITT, C, 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. On this note, we are concluding our series on this vexed issue.
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.
IRAN
THE DECEMBER 1979 IRANIAN CONSTITUTIONAL REFERENDUM
A proposed new Constitution which would make Iran an Islamic Republic, introduce direct elections for the presidency, create a unicameral parliament and require any constitutional changes to go a referendum was proposed by the Iranian Government. To bring this about, a constitutional referendum was held in Iran on 2ndand 3rd December, 1979. The new Islamic constitution was approved by 99.5% of voters at the Referendum.
BANGLADESH
THE 1991 BANGLADESHI CONSTITUTIONAL REFERENDUM
A constitutional referendum was held in Bangladesh on 15th September, 1991. Voters were asked “Should or not the President assent to the Constitution (Twelfth Amendment) Bill, 1991 of the People’s Republic of Bangladesh?” The amendments altered the existing Constitution and reintroduced of Parliamentary system of government. It also abolished the position of Vice-President and provided that the President be elected by Parliament. 83.6% of Bangladeshis voted in the referendum, with a turnout of 35.2%.
ERITREA
CONSTITUTION MAKING IN ERITREA
The Eritrea’s Proclamation 55/1994 established a Constitutional Commission which organized popular participation in the process of a new Constitution.
The Commission members and more than four hundred specially trained teachers instructed the public on constitutional issues and related political and social questions using local vernaculars. The process took three years to solicit the views of a broad cross section of Eritreans. The participation of a majority of Eritreans gave the people a “sense of ownership of the Constitution”.
THE AMERICAN EXAMPLE OF A PEOPLE’S CONSTITUTION
As a great contrast to the 1999 Nigerian experience, when America became independent from Britain in 1776, it held a Constitutional Convention under the leadership of George Washington, between May 14 and September 17, 1776, in Philadelphia, Pennsylvania. 55 delegates represented the autonomous Confederates, with a view to creating a “more perfect union”. Broad outlines of a new union were proposed and hotly debated. This was how the American people achieved a federal system of Government, separation of powers among three branches of Government (Legislative, Executive and Judicial); bicameral, legislature; an Executive presidency; and Judicial Review. The Constitutional draft was signed by 39 of the 55 delegates on September 17, 1787; and thereafter released to the States and the American people to debate and ratify. It was this people’s Constitution that threw up great founders, such as George Washington (first president); Alexander Hamilton, James Madison and John Jay (the Federalists), Thomas Jefferson, etc.
The 1999 Constitutions lacks these. It is not autochthonous or indigenous Being imposed, it worsened the unitary nature of government, and concentrated enormous powers at the centre. While the 1979 Constitution had 67 items on the exclusive legislative list, and 12 items on the concurrent list, the 1999 Constitution increase this to 68 on the exclusive list, but retained only 12 items on the concurrent list. This indicates an unacceptable unbearably strong centre and very weak federating units.
OUR CONCLUSION
The unity, development and peaceful co-existence of Nigeria as a country are currently imperial. Our diversities in area of culture language, tribe, and religion, must be seen by all as a Dolly Parton’s Coat of Many Colours, blessing and not a curse, because variety they say, is the spice of life. Concerted effort must be put in place by formulation of policies and reforms that would help promote national integration and peaceful co-existence. However, one of the strategies that must be pursued to ensure a far-reaching national integration and peaceful co-existence are to create a meeting point that would ensure and enhance integration between one ethnic nationality or tribe and another. One of the ways by which this noble idea can be achieved is by putting up a strong advocacy and support for intertribal and interreligious marriage.
Philosophers, many say, have understood the world, but the problem is to change it. Albert Einsten’s dictum is apposite here: “we cannot solve our problems with the same thinking we used when we created them” Hippocrates the father of medicine once told us that desperate diseases requires desperate remedies. An economy based on oil and other depleting natural resources is fast becoming obsolete. The global economy is already in the 4th Industrial Revolution or digital age, dominated by Robotics, Artificial intelligence, Machine learning, Virtual reality, Augmented Reality and others. At the moment, Nigeria is largely bypassed and still grappling with the most basic aspects of the old economy. But given its geographic- demographic conundrum, Nigeria has to leapfrog the industrialization value chain or stagnate. Yet its institutions are those woven around the distribution and consumption of oil rents and the old economy. A system designed for consumption cannot be expected to become efficient for competition and production in the 21st century. Sadly, many people miss this point. As Professor Claude Ake once put it, Nigeria operates a disarticulate economy, where we produce what we don’t consume and consume what we don’t produce.
For a change since the military incursion into our body politics, let us sit down and craft a new Constitution that not only provides for a stable, equitable and just polity but even more so focuses on the incentive structure to usher a competitive and productive economy of the future.
Reforms at the meta-level would entail either embracing our discarded Prime Minister system of government or dismantling and recoupling several of the institutions that help or hinder us, including a serious re-examination of the 36 state structure as federating units vis-à-vis their fiscal/economic viability or their consolidation into six or more regions with economies of scale and higher investment rates; multiple vice-presidency representing respective regions other than the region of the president, each with supervising powers over certain ministries to ensure equitable representation at the federal cabinet (the Central Bank has four Deputy Governors for instance); principle of equality of regions; multivariate judicial systems with state/regional appellate courts up to regional supreme courts while the federal supreme court becomes the constitutional court— and this is to decongest the centralized system and guarantee speedy dispensation of justice; introduction of commercial courts for speedy resolution of commercial disputes; institution of merit and equal opportunity principle; etc. This will carry the majority along.
Devolution of functions between the central and federating states/regions should be guided by the principle of subsidiary. According to the European Charter, subsidiary means that: “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of the responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy“. This principle is not observed in the 1999 Constitution. For a Constitution that proclaims a federal structure, the exclusive and concurrent lists constitute an atypical concentration of powers at the centre. Currently, the federal government is burdened with hundreds of parastatals and agencies trying to inefficiently micro manage the entire Nigeria, with the recurrent expenditure of the federal government exceeding total federal revenue. Every penny of capital spending by the Federal Government of Nigeria (FGN) is borrowed, and its fiscal position is precarious. Put starkly, not one kobo of oil money is invested in infrastructure by the FGN: it is all consumed by the obtuse federal bureaucracy. The federal government should loosen its hold on policing, electricity (power), railways, ports, aviation, business incorporation, taxation powers, regulatory functions, etc. This will generate the economy.
The greatest challenge is how to get some of the elite whose privileges are provided by the existing system to support its dismantling into a system that is potentially beneficial to ‘society’ but perhaps disproportionately harmful to their interests in the short term. In other words, we are faced with the same kind of conundrum as some western countries with their welfare system. Having designed and implemented it for generations, it has grown into an unsustainable octopus of inefficiency but reforming it is not easy. In the US, millions of voters are hooked to the feeding bottle and its government keeps postponing the day of reckoning by borrowing to keep the system alive (the US, with the global reserve currency can afford to borrow for a while from the rest of the world but Nigeria cannot). Everywhere, such a distributional system has acquired a huge and powerful constituency, and the political cost of dismantling and recoupling is not trivial. There is also an intergenerational issue involved. The present beneficiaries don’t care if the same benefits do not extend to the future generations: they just want to have their share and go, and let the future generations take care of themselves. Nigeria cannot continue to share the national cake without caring how it is baked. (The End).
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, Chief Mike Ozekhome, SAN, OFR, FCIArb., LL.M, Ph.D, LL.D. kindly, come with me to next week’s exciting dissertation.
A.I
Tags: Mike Ozekhome
