I had earlier said in several media outlets and still maintain that various amendments to the Constitution by successive governments are a clear admission that there is something fundamentally wrong with our Constitution. The Nigerian Constitution is 50 times bigger than the American Constitution, yet the American Constitution has only had very few amendments since 1776, when America became independent. What is, therefore, wrong with our Constitution is not the content, but more with the way and manner the Constitution came into being as a Decree of the Federal Military Government.
The present 1999 Constitution, which has been amended or altered three times is actually Decree No. 24 of 1999. The 1999 Constitution was actually attached to the Decree as an annexure or addendum. Consequently, such a Constitution that was militarily imposed, which was not made by the people for the people and of the people, suffers credibility problems. It suffers legitimacy and acceptability crisis.
That is why the Constitution is not respected, because it is a document that was imposed on the Nigerian people by an unelected military oligarchy, which is why I have always maintained that the Constitution lied about itself when in its preamble, it starts imperiously by saying that “we the people of Nigeria do hereby make and give to ourselves the following Constitution.” The Constitution was never made by the people of Nigeria. It was made by a tiny military cabal of about 28 members of the Provisional Ruling Council (PRC), and it was later given to Justice Niki Tobi, then of the Supreme Court, to cobble together and before we knew what was happening, a Constitution had emerged. So, it was never made for the “Nigerian people.”
The virus bedeviling our Constitution cannot be cured or remedied by amendments.
The proper thing, therefore, is to look at the issues from a more fundamental angle, because, if you want to uproot a tree, you do not succeed in doing that by cutting off the branches. The branches will sooner than later grow and the tree will stand again. What you do is to go to the taproot of the tree and remove it and then it will be dead forever.
What Nigerians need to do is to make a brand new Constitution, a Constitution that is home-grown, made by the people, subjected to popular referendum or plebiscite of the people as was done to the Midwest Constitution of August 9, 1963, when the Midwest seceded constitutionally and legally from the Western Region. The Constitution was subjected to a plebiscite of Midwesterners and they all voted for it to become a Constitution that derived its legitimacy from the people of the Midwest Region.
So, for us to have a Constitution that derives its legitimacy from the Nigerian people, we have to go back to the 2014 National Conference, where I was a member and headed the sub-committee on Constitution drafting, human rights and legal reforms, and that committee made recommendations, which were subjected to the plenary session and were consensually adopted.
Whatever things we needed in the 1999 Constitution that were administrative could be used in amending the present chronically defective Constitution. Better still, there will be need to have a totally brand new Constitution for the people of Nigeria, since the 492 members that were at the National Conference represented all strata of the Nigerian people: Labour, trade unions, youth, students, civil society, market women, professionals, technocrats, the military, the police, civilians, traditional rulers, educationists, members of the diplomatic corps and the physically-challenged. All aspects of the Nigerian society were represented at that conference of 2014.
The reason is simple: if we are to amend the present Constitution, which they have started again, it will still suffer the same affliction as the present one, because you do not treat a serious ailment like leprosy with medicine or drugs meant for eczema. The problem will still remain.
Since the Constitution you are amending is still chronically defective, even if you amend it one million times, any amendment, by whatever name called, will never give us the desired Constitution, which emanates directly from the people. We, therefore, have to make a brand new Constitution.
Constitution amendment:
The Senate and House of Representatives disagree on nine key areas
The National Assembly (NASS) has just commenced another amendment foray into the Constitution, notwithstanding the clear desire of all Nigerians from different ethnic, political and religious divides, who have continued to argue that the Constitution itself should be discarded and a fundamentally different one be promulgated in its stead. The Upper Chamber had on Wednesday, July 26, 2017, with about 97 senators in attendance, taken decisions to amend 33 provisions of the 1999 Constitution. Members of the House of Representatives, however, disagreed with their Senate counterparts on nine (9) issues that were adopted by the Senate.
Procedurally, each of the amendments that both the House and Senate agreed to will then be forwarded to the 36 states for ratification. Two-thirds of the state Houses of Assembly (i.e.: 24 State Assemblies) will have to agree on the amendments before being returned to the NASS, where the Clerk of the National Assembly will then send them to the President for assent.
Any amendment that fails to muster two-thirds of Houses of Assembly automatically fails and will be dropped from the list of bills to be transmitted to the President.
The amendment bills adopted by the Senate and rejected by the House (and vice versa) will form part of the amendments to be sent to the Houses of Assembly.
They are: 35 per cent affirmative action for women as ministers. Fate: Passed by the House but rejected by the Senate; Appointment of Minister from the FCT. Fate: Passed by the Senate but rejected by the House; Change of some LG councils. Fate: Passed by the Senate but rejected by the House; Citizenship and indigeneship. Fate: Passed by the Senate but rejected by the House; Removal of lawmaking power from Executive Arm (National Youth Service Corps). Fate: Passed by the Senate but rejected by the House; Removal of lawmaking power from Executive Arm (National Security Agencies Act). Fate: Passed by the Senate but rejected by the House; Removal of lawmaking power from Executive Arm (National Complaints Commission). Fate: Passed by the Senate but rejected by the House; Removal of lawmaking power from Executive Arm (Land Use Act). Fate: Passed by the Senate but rejected by the House; Deletion of State Independent Electoral Commission (SIEC) from the Constitution. Fate: Passed by the Senate but rejected by the House.
Other areas that were adopted by the upper and lower chambers may not be ratified by the 24 Houses of Assembly. This alone, and the disagreement of the NASS over the nine key areas, shows that the fate of Nigerians and a generally accepted Constitution cannot be subjected to ‘legislative politics’ (where majority of members from a certain political group, tribe, etc, only vote in favour of bills propitious to them).
Distribution of powers and responsibilities
Nigeria has a three-tier federal structure comprising the federal, state and local governments. Each level of government has constitutionally guaranteed autonomy in the area in which it operates. Local government is a guaranteed third-tier of government, even though the 1999 Constitution, Section 7(1) provides that state governments shall “ensure their existence under a law, which provides for the establishment, structure, composition, finance and functions of such councils.”
The legislative lists in the Constitution provide for the distribution of powers: the exclusive legislative list is assigned to the federal government; the concurrent legislative list is assigned to both federal and state governments and defines areas in which both can legislate; and the residual legislative list is assigned to the states. The exclusive legislative list has 68 items, while the concurrent legislative list has 12.
The exclusive legislative list includes: accounts of the government of the federation; arms, ammunition, and explosives; aviation (including airports); awards of honours and decoration; bankruptcy and insolvency; banks, banking, bills of exchange, and promissory notes; borrowing monies inside and outside Nigeria for the purposes of the federation or any state; census; citizenship, naturalisation, and aliens; commercial and industrial monopolies; construction and maintenance of federal trunk roads; control of capital issues; copyrights; creation of states; currency, coinage, and legal tender; customs and excise duties; defence; diplomatic, consular, and trade representation; drugs and poisons; election to offices of president and vice-president, governor, or deputy governor; evidence; exchange control; export duties; external affairs; extradition; immigration and emigration; implementation of treaties; insurance; incorporation, regulation, and winding up of corporate bodies other than those established by a law enacted by the state Houses of Assembly; labour; maritime shipping and navigation; meteorology; military (army, navy, and air force); mines and minerals; national parks; nuclear energy; passports and visas; patents; trademarks, trade, or business names; pensions and gratuities payable out of the public funds of the federation; police and other government security services established by law; posts, telegraphs and telephones; powers of the federal National Assembly and the privileges and immunities of its members; prisons; public debts; public holidays; public service of the federation; quarantine; railways; regulation of political parties; service and execution in civil and criminal processes, judgments, decrees, and other decisions of any court of law inside or outside Nigeria, except for laws made by the state; stamp duties; taxation of incomes; profits and capital gains, as provided by the Constitution; trade and commerce; traffic on federal trunk roads; water from sources declared by the National Assembly to affect more than one state; weights and measures; wireless, broadcasting, and television other than those owned by states; any matter with respect to which the National Assembly has power to make laws under this Constitution; and any “matter incidental or supplementary to any matter mentioned elsewhere in this list.”
The concurrent legislative list includes: allocation of revenue; antiquities and monuments; archives; collection of taxes; electoral law; electric power; exhibition of cinematography films; industrial, commercial, or agricultural development; scientific and technological research; statistics; trigonometrical, cadastral, and topographical surveys; universities; technological and post-primary education. Section 4(5) of the Constitution provides that, “if any law enacted by the House of Assembly of a State is inconsistent with law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of inconsistency be void.”
Unlike the 1995 Draft Constitution, which specified a state legislative list, the 1999 Constitution has no such list. However, all matters not identified in the exclusive federal, concurrent, and the local government lists come under the jurisdiction of the states. These residual powers are in fact extensive. They include, among others, health services, rural development, and social welfare.
The functions of the local government councils are also clearly stated in the Fourth Schedule. These include: (1) participation in the economic development of the state (such as Section 1[a-k]); establishment and maintenance of cemeteries, burial grounds, and homes for the destitute and infirm; licensing of bicycles, trucks, and others; establishment, maintenance, and regulation of slaughterhouses, market, motor parks, and so on; construction and maintenance of roads, streets, drains, parks, and gardens; provision of public conveniences, sewage, and refuse disposal; registration of all births, deaths, marriages, and so on; (2) provision and maintenance of primary, adult, and vocational education; (3) development of agriculture, other than exploitation of minerals; (4) provision and maintenance of health services; and (5) any other functions conferred on the councils by the state House of Assembly. (To be continued).
Thought for the week
“It is perfectly evident to any logical mind that when you have got the vote, by the proper use of the vote in sufficient numbers, by combination, you can get out of any legislature whatever you want, or, if you cannot get it, you can send them about their business and choose other people who will be more attentive to your demands”. (Emmeline Pankhurst).