CONSTITUTIONALLY ENTRENCHED INDEPENDENT COMMISSION

COLLOQUIUM REPORT ON INDEPENDENTLY -ENTRENCHED
COMMISSIONS HELD IN LAGOS ON MAY 18 &19, 2000

In spite of its weaknesses as an instrument of governance, the present democratic dispensation in Nigeria derives its legitimacy from the 1999 Constitution. The CFCR had at various meetings raised issues concerning the 1999 Nigerian Constitution especially the fact that the instrument lacks legitimacy as it is neither a document prepared by the people nor one on which the views and approval of the people of Nigeria was sought. One of the most glaring weaknesses of the 1999 Constitution is that it begins with a falsehood. For a preamble to begin with a lie as the 1999 Nigerian Constitution does is to compromise the very essence of the moral fibre on which constitutions are built. It asserts that "We, the people ... having firmly and solemnly resolved to live in unity and harmony ...provide for a constitution ...do hereby make, enact and give to ourselves the following constitution." This poses grave ethical questions for at no time did the ethnic and other interest groups in Nigeria meet. The 1999 Constitution is an instrument developed and foisted on Nigerians on the eve of the military handing over to a seemingly democratically elected government, and so cannot be said to be a people centred and people -developed constitution. The colloquium noted the following about the 1999 Constitution:

1. It is not a legitimate document as it does not reflect the wishes of the Nigerian people.

2. It is not popularly accepted as a valid instrument of governance.

3. The current agitation in practically every part of the country for either a sovereign national conference, self, determination, etc., provide a clear and convincing evidence that as a fundamental document that defines the relationship between the state and its people, the 1999 Constitution has failed to meet the expectations of Nigerians.

4. The near exclusion of the Nigerian people from the making of the document does not inspire much confidence in it.

A major criticism of the 1999 Constitution is that it makes the establishment of truly independent commissions rigorous and this limits its usefulness as a mechanism for limiting and regulating excessive state power. Independent commissions are proactive institutions in the defence of human rights.
Independent commissions are indispensable  instruments for defending rights and freedoms. They also ensure good governance, transparency, equity, fairness and accountability. They can be used to give a measure of protection to groups that have historically been marginalized in the political process. They are particularly useful to guard against the use of state power either for private enrichment or for victimizing citizens. They are a hedge against arbitrariness and autocracy in governance. They complement other constitutional safeguards against tyranny and oppression as they could form part of institutional measures to bring an action against the government for egregious violations of rights.

 They are indispensable proactive instruments for defending rights and freedoms.They ensure that state power is not used to the detriment of minority groups. They prevent conflict of interest among those who use state power. They help build legitimacy and people's confidence in the constitution and the entire political system. It helps to promote ethical public administration, especially given the kind of rape that Nigeria suffered in its recent history.

Factors that assure horizontal accountability of independent commissions include:

Security of tenure. Once appointed, appointees are not subject to removal by either the executive or the legislature.

2.Accountability to the public 
3. Adequate and secure source of funding from a consolidated fund.

4. Insulation from politics- must be non-partisan to be able to act independently.

5. Transparency in selection of their members to guarantee independence of the commissioners. The power to nominate and ratify appointments should not rest with one and the same body. 6. Institutions should publish periodic reports as a way of putting issues in the public domain.

Specific Recommendations

1. Designating them Federal executive bodies is a misnomer as they imply they are agencies of

the executive arm of government. This description should be removed from this chapter completely and put in an entirely new section properly describing them as Federal Independent Commissions.

2. Selection and appointment process should be widely publicised. The Select Committee on Appointments will collate and forward same to the Independent Public Service Commission which will now do the shortlisting and forward same to the Senate.

3. Non-competitiveness in recruitment should be stopped.

4. Funding and financial management must be truly independent.

5. The existing Human Rights Commission should be entrenched in the constitution and called the National Human Rights, Gender and Social Justice Commission.

6. The jurisdiction of the present Code of Conduct Tribunal should be expanded to handle anti-corruption cases.

7. Office of the Public Protector should be created. He will not necessarily be a lawyer but should be a person of integrity. 8. INEC should continue to exist and be truly independent but must not be given the function of registering parties.

9. State INEC should conduct state and LG elections

10. Constitutional Court should confirm all election results.

11. Environment Commission can not exist alongside the Ministry of Environment.

12. Media Commission is recommended.

For more information, please contact tawolalu@cddnig.org