Introduction
Improving the polity and enthroning a new order will help to make the dream of Nigeria’s founding fathers a reality. The recommendations of the conference can help the country to come out of its current challenges. On this note, we shall continue and conclude our expository/exploration of the 2014 National Conference recommendations. We shall kick-start today’s discourse with the need for a brand new Constitution, a Constitution that is autochthonous, credible, legitimate and people driven.
Need for a new Constitution (continues)
A cursory look at Section 6 and Sections 230-296 will convince any objective observer. Though each of the ten Courts listed in Section 6(5) beginning with the Supreme Court has a portion of chapter seven dedicated to it, each is today the subject of a separate Act of the National Assembly or the law of a State. We today have the Supreme Court Act, the Court of Appeal Act, the Federal High Court Act, and the High Court of the FCT Act. At the state level, each State has a law establishing the State High Court, the Customary Court of Appeal, and the Magistrates Courts. Each of these Acts or laws is a repetition of the provisions of chapter Seven or part thereof. What then is the essence of chapter Seven? The same goes for the other three chapters – chapter Five, chapter Six and chapter Eight. For example, there is the FCT Act – establishing the FCT, Abuja.
Nigeria has never had a truly democratic Constitution. To be sure, the country has had legal constitutions, but they have hardly been legitimate. A Constitution may be legal but not legitimate, as in the Nigerian case. The country has never adopted a participatory or process-led approach involving the various nationality groups and the various communities, constituencies and interests that make up the country in compacting its constitutions. It has consistently been elite-driven with the state playing a critical role in determining the content of the final document.
The 1999 Constitution (which is actually Military Decree No 24 of 1999), hardly demonstrates any sensitivity to these issues. It hardly pays attention to questions of autonomy or reorganization of political power and though it pays so much attention to power and the definition of power, it is still lopsided in favor of the center. The states of the federation do not have control over their own resources. This is still the exclusive preserve of the federal government that has guaranteed only 13% of generated revenues to the states where the resources are generated This is no different from the situation under the military where the federal government illegally appropriated the resources of units of the federation and doled out meager portions to them under dubious fiscal arrangements.
The debate in the oil-bearing and producing communities of Nigeria has long gone beyond percentages to one of control. The 1999 Constitution could not have been more unrealistic and out of touch. Under the 1999 Constitution, the states cannot set up their own Police forces. The State Police Force (SPF) is only a branch of the Federal Police Force under a federally appointed Inspector General of Police. Section 214 (1) is clear on the fact that there shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof. According to Section 214 (c), it is the National Assembly that is empowered to make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation…. And the Commissioner of police for each state shall be appointed by the Police Service Commission. Even more ridiculous in a federal system, is that in the event of a need to maintain or secure public safety and public order within the state, a governor may direct the commissioner of police to take necessary action, while the Commissions in turn takes orders from above.
This is because according to section 215 (4), before carrying out any such directions the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorized in that behalf by the President for his direction. After Nigeria’s experience in the first republic, and given the bitter partisan quarrels that accompanied the 1998-99 elections, the federal government can hardly be regarded as not being partisan much less interested in objectively responding to crises in states if such crises might weaken the opposing parties. The federal Ministry of Education does not just play a supervisory role; it also dictates policy to the state departments of education. In fact, one of the first acts of General Obasanjo as the democratic president of Nigeria was to pay the salaries of striking teachers in the states. As it turned out, General Obasanjo had illegally appropriated monies belonging to the state governments to perform this “magnanimous” act for which he took a lot of credit!
The Ethiopian example of a new constitution
The Ethiopian constitution of 1994 directly addresses issues of language, nationality, sovereignty of the people, supremacy of the constitution, human and democratic rights upfront. A country like Nigeria might actually draw some lessons from Ethiopia. It is clearly a Constitution that has drawn very painful lessons from the past. Rather than pretend that ethnic consciousness and identity are superficial and try to homogenize the diverse peoples of Ethiopia, the Constitution declares that “All Ethiopian languages shall enjoy equal state recognition,” though “Amharic shall be the working language of the Federal Government.” It however allows “Members of the Federation” to “by law determine their respective working languages.” In Article 8, the Constitution vests “All sovereign power” in “the Nations, Nationalities and Peoples of Ethiopia;” declares the Constitution as “an expression of their sovereignty” and that “their sovereignty shall be expressed through their representatives elected in accordance with this Constitution and through their direct democratic participation.”
In some way, this means that a military government is clearly illegal even if this was not expressly stated as in the cases of Ghana and Uganda. The Constitution declares that it is the “supreme law of the land” and any other law shall be of no effect and that “It is prohibited to assume state powers in any manner other than provided under the constitution.” This is obviously dictacted at those military interests that might have ideas about overthrowing the government. The Constitution makes provisions for non-state religion and there is an elaborate coverage of fundamental rights and freedoms.
It gives voice to international treaties on crimes against humanity ratified by Ethiopia and declares that such crimes “shall not be barred by statute of limitation. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ.” Article 33c guarantees Ethiopian nationality to those who already have them as “No Ethiopian national shall be deprived of his or her Ethiopian nationality against his or her will.” The rights of women are directly addressed in Article 35 including “equal rights with men,” and declare that “the dominant legacy of inequality and discrimination suffered by women in Ethiopia taken into account, women, in order to remedy this legacy, are entitled to affirmative measures. The purpose of such measures shall be to provide special attention to women so as to enable them compete and participate on the basis of equality with men in political, social and economic life as well as in public and private institutions.”
Finally, the 1994 Ethiopian Constitution, unlike most Constitutions in Africa directly engages the nationality question. It declares that “every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession;” “Every Nation, Nationality and People in Ethiopia has the right to speak, to write and to develop its own language; to express, to develop and to preserve its history;” “Every Nation, Nationality and People in Ethiopia has the right to a full measure of self-government which includes the right to establish institutions of government in the territory that it inhabits and to equitable representation in state and federal governments.”
The way forward
Referendum/plebiscite: To be or not to be
The National Conference reports needs to be subjected to a popular national referendum or plebiscite of the Nigerian people, to have their legitimacy. What is required is the political will of the President, the patriotism of the National Assembly and the vigilance and insistence of the citizenry and civil populace, to insist that the decisions of the Confab be subjected to a popular plebiscite or referendum of the Nigerian people. This will give Nigerians a brand new Constitution that is at once indigenous, autochthonous and home grown. Such a Constitution will enjoy the legitimacy, respectability and acceptability of the Nigerian people. It will herald in a new dawn of self-pride, better understanding and a renewed energy by all Nigerians to live together in an atmosphere of peace mutual respect, fairness, equity, justice, egalitarianism and development.
The Conference had itself at page 383 of Annexure 1 (Committee Reports), Volume 1 boldly pointed the way thus:
“On legal reforms, the Committee recommended that the President should implement the policy recommendations directly and charge Government Agencies to initiate the amendment those Acts relevant to their operations as recommended by the Conference. For those requiring amendments to certain Sections of the Constitution or the emergence of an entirely new Constitution, the Conference should draft a Bill to that effect for the President to forward to the National Assembly for further actions. Also, Conference recommendations should be taken to the Court of public opinion/Referendum, if the need arises”.
This recommendation was never defeated on the floor.
Surprisingly, at page 173 of the Main Report this loft recommendation was watered down as follows:
“Policy recommendations arising from the Conference should be implemented by the Presidency;
Recommendations requiring abrogation or amendment of existing Laws other than the Constitution should be initiated/carried out by the relevant Authorities, Ministerial Departments and Agencies”
This was not what the Conference agreed upon. It is page 383 of Annexure 1 that captures the correct position and the mood of the Conference. All said and done, the National Conference was a huge success.
Conclusion
The National Conference 2014 was a huge success, shaming the doomsday forecasters, the status quo czars, historical revisionists, and ethno-religious bigots who had predicted and worked towards its failure.
Nigeria has, by Conference decisions, been forever retooled and re-engineered, when these resolutions are dutifully implemented. How do we bring these about in a new Constitution? This is the challenge which the President must squarely address. All the issues about insecurity, corruption, bad economy and lack of infrastructure are predicated on a faulty foundation of our national co-existence. It is impossible to wipe out corruption, or even tame it, or fight insecurity, when the fundamentally flawed 1999 Constitution overtly encourages them. The problem must be tackled headlong through the introduction of a brand new Constitution. You do not cure a serious ailment such as leprosy with a drug meant for eczema, or skin rashes. You do not kill a tree by cutting off its branches. It will soon sprout and germinate others. You kill it by uprooting it from its very tap root, root, stem and branches. You do not prevent a building from falling by merely patching up its cracked walls with cement and mortal. You dig deep into the foundation, put iron rods and basket it from the deep soil.
(Concluded)
Thought for the week
“Leadership is having a compelling vision, a comprehensive plan, relentless implementation, and talented people working together.” (Alan Mulally)