Introduction
In our last outing, we x-rayed Politics and the Nigerian Constitution, after which we examined the Nigerian Constitution and the Rule of Law. Today, we shall continue and conclude with same and later take a look at Democracy and the Nigerian Constitution, Autochthony Of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and then the Illegitimacy of the 1999 Constitution. Read on.
The Nigerian Constitution and the Rule of Law (continues)
Nigeria constantly experiences situations where the Executive goes about its offices and operations like an overlord, lording it over the other arms of government and the entire citizenry at large like an emperor. This is outright arbitrariness. However, this can only be blamed on the very nature of our constitution and the extreme power it bestows on the Executive over other arms of government and the people. Understandably though, this is only a fall out of our history of military autocracy. Until the people of Nigeria are allowed to really give to themselves a constitution, we will continue to be shadowed by the ugly monster of executive arbitrariness and lawlessness.
It is also pertinent to point out that law cannot serve as an instrument of victimization in the hands of the Executive by which scores are settled with political foes. I say this in view of the ICPC and EFCC Acts. Much as one appreciates the relevance of these laws, it is sad to observe that they have been bastardized by their selective application. There is no gain-saying the fact that corruption has eaten deep into our social and political consciousness, so much so that there is need for a drastic reorientation and attitudinal change. However, that fight must be objectively carried out, and laws must be all embracing, recognizing no sacred cows, respecting nobody.
Corruption in Nigeria has made Nigeria to be rated as 149 out of 180 countries rated globally by Transparency International. Corruption has also impacted the seemingly absence of Rule of Law in Nigeria. No matter how hard this fact is tried to be concealed, we cannot proceed a step from this rotten quagmire except we decide to be honest about the problem of corruption. I opine that this problem issues from lack of love for Nigeria, which is evidently why politics in Nigeria is an affair of winner takes all. Patriotism is lacking in our leaders generally, and this is why the tax-payers money continues to be siphoned and dumped into bank accounts by those elected by the people to serve and protect public interest. It is therefore my candid view that the solution to the Nigerian problem must start from the democratization of our political institution.
Democracy and the Nigerian Constitution
Government is universally accepted to be a necessity, since man cannot fully realize himself except within an ordered society. Yet, the necessity for government creates its own problems for man; the problem of how to limit the arbitrariness inherent in government; and to ensure that its powers are used for the good of society. This gave birth to the principle of democracy.
Democracy is a universal concept; its practice differs from one place to another with regard to acquisition of power and institutional arrangements. Hence, one can talk of American democracy, Nigerian democracy, British democracy, Irish democracy, and so on. The Nigerian democracy started in 1999 when President Olusegun Obasanjo took office as the President of Nigeria in 1999, ending the multiple decades of military rule that began in 1966 and was only interrupted by a brief period of democracy from 1979 to 1983.
Democracy is a form of government in which the people have the authority to choose their governing legislators’. More elaborately, democracy is “that form of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation.”(Black’s Law Dictionary). This gives credence to the popular and beautiful definition of democracy by Abraham Lincoln, to wit, “government of the people, by the people and for the people.”
These elaborate and concise definitions capture in totality the very essence of democracy. However, one cannot but appreciate the consanguinity of the principles of constitutionalism and democracy. The doctrine of modern democracy is predicated upon the domicility of power on the people who then agree, one with another, to vest authority on some elected representatives to exercise on their collective behalf in absolute accord with the dictates of the constitution, wherein lies the collective will and power of the people. Little wonder then why the 1999 constitution of the Federal Republic of Nigeria is preceded by this beautifully emotive preamble: “We the people of the Federal Republic of Nigeria…”.
This preamble captures the very basis of a democratic Constitution. However, it remains to be seen whether the spirit and content of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, are really in accord with the will of the Nigerian people. Be that as it may, if a constitution issues from the people, it must be seen to serve the aims and aspirations of the people, and a government directed and controlled by the constitution must recognise that the welfare of the people is the paramount law (salus populi est suprema lex). It can therefore be inferred validly that constitutionalism and democracy are no strange bedfellows, they work in tandem and indeed are mutually inclusive.
The constitutive elements of constitutional democracy refer to elements of essential and indispensable nature, such as popular control of the decision making processes of government exercised through such devices as free and fair elections at periodic intervals of time; representatives governmental bodies; free speech, public assemblies and processions; protection of civil and political rights; acceptability of the rulers to the mass public; a society permeated by a libertarian, democratic ethic and ethos; etc. These constitutive elements of democracy (as well as its supporting pillars of good life, security and public welfare of its citizens) imply good governance.
The adoption of democracy in Nigeria was widely embraced to promote legitimacy and inclusion in better decision making, which was inherently unattainable under the military regime. However, despite over two decades of civilian democracy, inequalities in distribution of power and resources continue to impact the citizen’s right to equal protection and due process. (Ikechukwu Amaechi, “Nigeria’s ‘democracy’ is not working” (November 21, 2019) available at: https://www.vanguardngr.com/2019/11/nigerias-democracy-is-not-working/)
In Nigeria, there are no rights of access to information, participation in decision making and access to justice. These three rights are key because they promote transparency and impartiality in governance to enable people to be better informed; better influence the outcome of decisions; and, hold the government accountable for its actions and inactions.
The extent to which democracy has been expunged in Nigeria can be seen in the #EndSARS protests. Here, Nigerians were protesting for an end to police brutality, harassment and extortion. The government’s response to the protests violated the three rights of access to information, participation in decision making and access to justice.
First, it denied access to information by imposing fines on television stations which aired the protests and even targeted civilians who had recorded the events of the tragic shooting of protesters. It went ahead to ensure that members of the Panel of Enquiry set up to look into the excesses of SARS swore an oath of secrecy. As regards denying participation in decision making, the government failed to listen to the demands of the protesters. Rather, the government ordered the Nigerian Army to confront the peaceful unarmed protesters, and 12 patriotic Nigerians lost their lives that day.
Of course, till date, the murderers of the Nigerian citizens at the #EndSARS protests have still not been brought to book, denying access to justice. In fact, a 2018 Presidential Panel on Reform of the Special Anti-Robbery Squad (SARS) recommended the dismissal of 37 members of the notorious police unit, and the prosecution of 24 others for gross professional misconducts. Nothing is yet to be done to the implicated officers.
Moreover, can we really say we are practicing democracy, when in a country of over 200 million citizens, including more than 84 million registered voters, the serving President won with 15.2 million votes total? In 2019, the 35% voter turnout was down from 44% in the 2015 Presidential elections and 54% in 2011. This shows a loss of faith and confidence in the election process, and in turn, democracy. If less than half of a country voted in a Presidential election, can the winner of such election, by whatever margin, be rightly said to be a “President of the people”? I think not.
This is a wake-up call for Nigerians. Our democracy is slowly being expunged and nothing is being done about it. Many believe that they are not directly affected with this development, but they are gravely mistaken. While democracy is being nourished and made to take roots in other climes, it is being manipulated and malnourished in Nigeria. In his 1962 assessment of the practice of democracy in Nigeria, Chief Obafemi Awolowo once opined that democracy was “pinning away on its death-bed, it has been mercilessly assaulted and violated. It is already being made to suffer from gross misuse and utter lack of nurture”. (ThisDay, “How American Strong Institutions Trumped Trump, a Strongman (Part 4 Concluded)”, (March 2, 2021) available at: https://www.thisdaylive.com/index.php/2021/03/02/how-american-strong-institutions-trumped-trump-a-strongman-part-4-concluded/)
In Nigeria today, socio-economic and political inequality is a prominent and permanent feature of democracy, where democracy has further widened the gap between those who have access to power and public funds and those who do not; rather than the other way round. Since democracy is said to be government of the people, by the people and for the people, it is therefore generally assumed that democracy is the most suitable form of government.
Generally, it is assumed that democracy is the pursuit of the welfare of the generality of the people wherever it is practiced. While this may be so in some democracies, the reverse is the case in Nigeria. While democracy is synonymous with holistic development and aggregated growth in some jurisdictions, it is the representation of betrayal and inhuman deprivation in others. While some countries aspire to and do indeed practice democracy for the socio-economic benefit of the generality of the people or at least as many people as possible, Nigeria makes its own brand of democracy government of the few, by the few and for the socio-economic benefit of the few. The time for change is now.
Autochthony Of The Constitution Of The Federal Republic Of Nigeria 1999 (As Amended)
The first step towards achieving this objective in Nigeria is by creating a Constitution that will essentially answer to the description of democracy. This means that the people of Nigeria must be allowed to give themselves a truly democratic Constitution, which will actually have the flavour of supremacy, unlike the extant 1999 Constitution, which was foisted on us by the military juncta; little wonder then why it vests so much power on the presidency that borders on totalitarianism.
The Illegitimacy Of The 1999 Constitution
The present Constitution of 1999 was promulgated on the 5th of May, 1999, with the contents largely based on the 1979 Constitution. It arose from recommendations made by a Constitutional Debate Co-ordinating Committee headed by late Justice Niki Tobi, which collated views from individuals and groups across Nigeria. The 28 member Provisional Ruling Council headed by General Abdusalami Abubakar (rtd) promulgated these recommendations as Decree No. 24 of 1999, and attached the 1999 Constitution as a mere schedule to the said Decree No 24 of 1999. Indeed, the 1999 elections had already taken place and winners declared without the benefit of a Constitution.
It is therefore clear that such a questionable document of dubious pedigree, and which was imposed on the Nigerian people by military dicta cannot enlist legitimacy, credibility and acceptability of the people. For a Constitution to be people-oriented, it must emanate directly from the people through a popular plecibite or referendum as happened when the old Midwest Region was carved out of Western Region as an autonomous Region, on 10th August, 1963. A credible and respectable Constitution that must be solemn, social, contractual, voluntarily entered into by the people, home-grown (autochthonous) and not imposed on the people. (To be continued).
Thought for the week
Drafting a Constitution is only the first step. The Constitution has to be granted legitimacy by open discussion and a fair, representative referendum”. (Emma Bonino)