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CONSTITUTIONAL REFORM IN NIGERIA: PERSPECTIVES FROM CIVIL SOCIETYBy OTIVE IGBUZOR, M.P.A (Pub. Admin), M.Sc. (Int. Relations)Secretary, Citizens’ Forum for Constitutional Reform (C.F.C.R.) 2, Olabode Close, Off Association Avenue, Ilupeju, P. O. Box 15700, Ikeja, Lagos. Tel: 01/8043221 E-mail: igbuzor@cddnig.org
INTRODUCTION
The issues of constitution, constitutionalism and constitutional reform have assumed great prominence and importance in recent times. Constitution has been defined in various ways. A Constitution has been defined as the embodiment of all the political, economic, social, cultural, religious and even historical forces conditioning the perception of a people at any given time and powerful enough to be isolated and accepted as a guide for future action (Okoli and Okoli,1990:83). A Constitution has also been defined as the totality of the rules and regulations, both legal and non-legal which ordain, order, regulate and sustain the government of a given country (Bagehot,1949). Another popular definition is that which defines a constitution as the basic or fundamental law of the land, which contains the rules, conventions, and other practices by which a society governs itself.
From the above definitions, it is clear that a constitution may contain rules about how those who govern are to be selected or changed, how they are to behave in office and the relationship between the organs of government. It also shows the relationship between the government and the citizens and even amongst the citizens. The importance of constitution in a country can not be overemphasized. As Georges Bidault noted, “the good or bad fortune of a nation depends on three factors: Its constitution, the way the constitution is made to work and the respect it inspires”. Constitutionalism can be defined as adherence to the letter and spirit of the constitution. It upholds the supremacy of the constitution and requires that government officials must obey and operate within the framework of the law. It is important that a country should not only have a good constitution but that the principles of constitutionalism be adhered to. As Okoth-Ogendo has argued, for the past four decades in Africa, there appears to be a commitment to the idea of constitution but at the same time, there is a rejection of the classical notion of constitutionalism (Okoth-Ogendo,1991:6). In any case, constitutionalism has to be understood in the context of power relations (Mandaza, 1991:76). Scholars have argued that there is a new concept of constitutionalism which should rest on accountable/responsive state and collective rights and freedoms (Shivji, 1991:39-40). It has also been argued that this new constitutionalism has become an integral part of the African political reform process (Ihonvbere, 2000:24). This new constitutionalism is captured by the struggle for reform of constitutions in all parts of Africa. The Centre for Democracy and Development aptly captured the new trend when it stated: “At every level on the continent, the idea has taken root that the Leviathans of Africa must no longer function as “virtual democracies” but must be refashioned to reflect the realities of their multifaceted societies. This has been reflected in the constitutional Conferences in Benin, Mali, Togo, Niger, the Democratic Republic of the Congo, and Cameroun in the early 1990s, in the successful constitutional arrangement of South Africa, and in the process-based constitutional commissions in Uganda and Eritrea……..Today, the struggle for constitutional reform in Kenya, Tanzania, Zimbabwe and Nigeria typifies the second liberation/independence struggle in the continent. The struggle has been led predominantly by civil society in Africa, since the political parties have proved either incapable or unwilling to push for constitutions that will promote just and equitable societies, being instead distracted by a chance to exercise power”(CDD, 2000:33-34)
CONSTITUTIONAL REFORM IN NIGERIA The history of a written law or constitutional organ for the area that later became known as Nigeria can be traced to the Act of 1862 which provided for the colonial administration of Lagos (Political Bureau, 1987:27). This was followed by the Southern Nigeria Act of 1906 and then the Amalgamation Act of 1914. The first main constitution was however the Clifford Constitution of 1922 named after the Governor, Sir Hugh Clifford. The constitution was made following agitation by Nationalists at that time. With the introduction of this constitution, for the first time in the history of the country four people were elected into the legislative council of 46 members(Three from Lagos and one from Calabar). After the Second World War, the fight for the right to self-determination and struggle against colonialism increased in tempo leading to a review of the Clifford Constitution. In 1946, the Richards Constitution was made also named after the Governor, Sir Arthur Richards. With the Richard Constitution, twenty-eight people were elected into the legislative council of 46. Four of the twenty-eight were directly elected and the remaining twenty four were indirectly elected from their regional assemblies. It has been documented that the lack of consultation that characterised the making of the Richards constitution angered many Nigerians. According to Dare and Oyewole,
“With the promulgation of the constitution, many people were angry because the Governor did not consult the nation before the constitution was drawn up. It was therefore regarded as an arbitrary imposition on the country” (Dare and Oyewole, 1987:132) As a result of the non-consultation, the criticism and rejection of the Richards constitution was immediate. This led to a series of activities that culminated in the making of the Macpherson Constitution of 1951 also named after the then Governor Sir John Macpherson. It is instructive to note that before the Macpherson constitution was promulgated into law, the draft was debated at village, district, provincial and regional level. In addition, there was a general conference held in Ibadan to discuss the draft. According to Sagay, ‘the 1951 constitution came into being after an unprecedented process of consultation with the peoples of Nigeria as a whole…..On 9 January, 1950, a general conference of representatives from all parts of Nigeria started meeting in Ibadan to map out the future system of Government in Nigeria with the recommendation of the Regional Conferences as the working documents” (Sagay, 1999:14). The Macpherson constitution provided for a central legislature with 147 members out of which 136 were members elected from the three regional houses.
Despite the consultation that went into its making, the implementation of the Macpherson Constitution was ridden with crisis. This led to the 1953 London Conference and the 1954 Lagos conference culminating in the promulgation of the Lyttleton constitution in October, 1954. Under the constitution, Nigeria became a federation of three regions, Northern, Western and Eastern regions. According to Oyovbaire et al, the Lyttleton constitution “removed the elements of unitarism contained in the 1951 constitution. Consequently, the constitution for the first time established a federal system of government for Nigeria (Oyovbaire et al,1991:193). In preparation for independence, the London Constitutional conferences of 1957 and 1958 were held leading to the 1960 independence Constitution. In 1963, the Republican Constitution was made. According to Sagay, “both the 1960(Independence) constitution and the 1963(Republican) constitution were the same. The only differences were the provisions for a ceremonial President (1963) in place of the Queen of England (1960) and the judicial appeals system which terminated with the supreme court (1963) rather than the judicial Committee of the British Privy Council (1960) (Sagay,1999)
The military intervened in the political scene in 1966 and the 1979, 1989, 1994 and 1999 constitutions were made during military regimes. The 1979 constitution was written by a constitution drafting committee made up of 49 wise men (no woman). A draft of the 1989 constitution was debated by an elected Constituent Assembly (with one-third of the members appointed by the regime). But as Jega pointed out, fundamental alterations were effected through another review process undertaken by the regime(Jega,1999:11) A Constitutional Conference was convened to discuss the 1994 constitution. However, the election into the conference was boycotted as a result of protest against the annulment of the June 12th 1992 election believed to have been won by Chief M.K.O. Abiola by the Babangida regime. More than one-third of the membership of the conference was appointed by the regime. In addition, ‘the regime effectively used its control of the technical/executive committee of the constitutional conference to literally, alter decisions arrived at on the floor of the conference”.(Jega,1999:12). The 1999 Constitution was promulgated into law by the Military regime of General Abdulsalami Abubakar after the Constitution Debate Co-ordinating Committee led by Justice Niki Tobi submitted its report. The Tobi Committee had barely two months to consult with all Nigerians before submitting its report. On 19th October, 1999, the obasanjo regime inaugurated the Presidential Technical Committee on the Review of the 1999 Constitution to co-ordinate and collate the views and recommendations from individuals and groups for a review of the 1999 constitution. At the time of submission of its report the word technical has dropped out of the name of the committee obviously in response to the criticism that constitution making should not be regarded as a purely technical affair. The Committee which was initially made up of eifghteen members (six from each of the registered Political parties: People’s Democratic party, All People Party and Alliance for Democracy) was increased to twenty four to accommodate more women. An after thought? As Ezeilo has argued, constitution making in Nigeria has persistently excluded female legitimacy (Ezeilo, 2000:5)
From the historical delineation above, a few points are clear. First, the history of constitution making in Nigeria is inextricably linked with the struggle against colonialism and the struggle for self-determination, representation and participatory democracy. Secondly, the call for a national conference to consider a draft constitution and the future of the country is not new in Nigeria. There was a ‘general’ conference to debate the Macpherson constitution in January 1950 before it became operative in1951. Thirdly, and perhaps most importantly, rulers hardly on their own decide to bring about fundamental constitutional changes. Changes can only be brought about by a concerted action of the people who are the prime movers of history. Finally, all the constitutions that have operated in Nigeria are imposed constitutions. Although there was wide consultations in the making of the Macpherson constitution, the origin and leadership of the constitution making was colonial and imposed.
REVIEW OF THE 1999 CONSTITUTION: A CRITIQUE
When the present civilian regime was inaugurated in May, 1999, it had no choice but to operate the 1999 constitution promulgated through Decree No. 24 of May 5, 1999. The majority of Nigerians are unanimous that the 1999 constitution is illegitimate, an imposition and defective in many areas. First and foremost, the constitution has been criticised for telling a lie against itself when it claimed that “we the people of the Federal republic of Nigeria……” resolved to enact and give the constitution to ourselves. It has been argued that the people of Nigeria neither participated in the making nor in the enactment of the 1999 constitution (Ezeilo, 2001:6-7). Secondly, there are many provisions, which make the constitution more unitary than federal. For instance, the constitution insists that political parties must have executives in two- thirds of the states of the federation. In addition section 44 vest the entire property and minerals (including oil) on the Federal government. Also, the constitution created the National Judicial Council to control and discipline both federal and state judicial officers. Thirdly, there are a lot of contradictions in the 1999 constitution. For instance, while section 222 gives the impression that political parties only need to register with Independent National Electoral Commission (INEC), section 40 gives a proviso that INEC will have to accord recognition to political parties. Section 15 of the third schedule also gives power to INEC to register political parties. Another example is that while item 11 in the concurrent list gives the National Assembly the power to make laws with respect to registration of voters and procedure regulating elections to a local government council, item 12 gives the power to state houses of Assembly to make law with respect to election to a local government council. In addition, whereas we are supposed to be operating a presidential system of government where the principle of separation of powers operate fully, section 315 of the constitution gives the president powers to amend any existing law to bring the law into conformity with the provisions of the constitution. Fourthly, the constitution is written in a language that makes it difficult for many citizens particularly non-lawyers to understand. Finally, there is a lot of inelegant drafting, which has created some problems. For instance, section 156(1) which gives the qualification for membership of Federal Executive bodies of which INEC is one provides for the same qualifications as for members of House of Representatives. Meanwhile, section 65(2) provides that a person cannot be a member of the House of Representatives unless he is a member of a political party. This has created the confusion of the interpretation that members of INEC must be members of political parties. We do not think that this is the intention of the drafters.
In response to these criticisms, the Federal Government inaugurated the Presidential Committee on the Review of the 1999 constitution on 19th October, 1999. In February, 2001, the committee submitted its report to the President. Between 30th April, and 29th May, 2001, the zonal presentations were made in the six geo-political zones of the country. The report was presented in two volumes-Volumes 1 and 11.
The report stated that the committee received about two million written memoranda and one and half million oral presentations. An analysis of the report will show that it is a bundle of contradictions and subversion of the will of the people as enunciated in their submissions. In the preamble to the report, it acknowledged that “Nigeria has never had a really participatory or people driven constitution making approach”(pp1-2, Vol.1). There is no doubt that all Nigerians will agree with this position. A careful reading of the report will show that the report captured correctly the mood, presentations and positions of Nigerians regarding various contentious issues but refused to make the recommendations that will amend the constitution along those lines. For instance, on revenue allocation, Derivation and Resource control, the report stated that “the derivation principle or formula from natural resources was accordingly rejected in several parts of the federation in preference for a return to fiscal federalism principle under which federating states (or regions under the 1963 constitution) owned, controlled and developed the natural resources which were located on their land” (P43, Vol.1). The report further stated that “The twin issues of Derivation formula and resource control stand out and constitute the greatest test of the political will of the constitution review process to effect the desired restructuring of the Nigerian Federation so that justice is done to all stakeholders in the Nigerian Nation” (p43, Vol. 1). Now, what is the recommendation of the committee to address this issue? The committee recommended that the derivation formula as contained in section 162(2) of the 1999 constitution be increased substantially beyond the 13 percent minimum (p44, Vol.1). Meanwhile, in its proposed bill for amendment in volume 2 of its report, Section 162(2) was lifted verbatim as Section 169(2) of the proposed amended constitution without increasing the derivation percentage beyond 13 percent. This is fraudulent!
On the Land Use Act, the report states that “ One of the most controversial pieces of legislation in Nigeria today is the Land Use Decree of 1978 which sought to harmonize the various Land Tenure systems in the country and thereby ease the acquisition of land for public purposes”(p64, Vol. 1). The report further stated that “The preponderant view in several parts of the country was that the Land Use Act was unduly oppressive and had in fact outlived its usefulness. Nigerians argued that it was mischievous of Government to have tied the Act with the constitution in the belief that it will ease the wrongful appropriation of the land, which naturally belonged to the people. They maintained that the right of the people to ownership of land was an inalienable right which government could not, by any pretentious trusteeship, take away from the people. The promulgation of the Land Use Act was therefore seen as an anti-people and undemocratic action by the military Government (pp64-65, Vol.1). But what did the committee recommend? The committee recommended that the status quo as provided in Section 315(5) of the 1999 constitution be maintained. This approach runs through the entire report in all the contentious issues identified by the committee such as political structure, secularity, judiciary, women, human rights, state-federal relations, the military, the police force, political parties and local government.
From the above, it is clear that the committee had a pre-determined position on all the issues. The recommendations were not based on the memorandum received. They tried against the content of the memoranda, logic and reason to preserve the status quo (the 1999 constitution) that has been so severely criticised by all. The National assembly has also started a process of review of the 1999 constitution. At present(June, 2001), the National Assembly Joint Committee on the review of the 1999 constitution is going round the country to collect memoranda.
PERSPECTIVES FROM CIVIL SOCIETY
The Civil Society in Nigeria has been in the forefront for a reform of the 1999 constitution. Barely one month after the inauguration of the civilian regime, a leading non-governmental organisation in West Africa, the Centre for Democracy and Development (CDD) organised a conference on the 1999 constitution and the future of Democracy in Nigeria. At the conference, the Citizens’ Forum for Constitutional Reform (CFCR), a coalition of civil society organisations committed to constitutional reform was formed. At present, the coalition has over sixty members. Since its formation, the Forum has been leading the debate on constitutional reform in Nigeria.
The CFCR has been advocating for a process led and participatory approach to constitution making in Nigeria. The Forum argues that constitution making in Nigeria should not be a secret affair dominated and directed by political elite especially conservative lawyers and politicians but should be guided by the principles of inclusivity, diversity, transparency and openness, autonomy, accountability and legitimacy (CFCR, 2001:2). The Forum is of the view that all voices and opinions including those of minority groups should be heard and reflected. The body leading the process should reflect existing diversity in terms of ethnic identity, language, religion and gender. The reform process should ensure that people participate. Participation by the people is crucial because if the people do not participate, both the process and the final document will be useless and irrelevant to democratic renewal that is so badly needed in the country. The Forum endorses the argument that participatory approach to constitution making is probably one of the best panaceas to instability, public cynicism and alienation from government, coups and counter coups (CFCR, 2001:3). The process should be transparent, open, independent of government control and the draft constitution should be subjected to a referendum before final enactment.
The perspective of the civil society enunciated above is not being utilised by the presidential committee or the National assembly. This is why the Forum observes that the review process of the federal government is shallow, elitist and does not involve the people (CFCR, 2001:1). Furthermore, the pervasive view in civil society is that the 1999 constitution needs fundamental reform. Unlike the Presidential committee that struggled against the content of memoranda submitted to them, logic and reason to preserve the status quo, the Citizens Forum made far reaching suggestions in its submission to the Joint committee of the national assembly on the review of the 1999 constitution. On women for instance, the Forum recommended that the language of the constitution should be gender neutral and at least 30 percent of all elective and appointive positions be reserved for women. On federalism, the forum recommended the devolution of more powers to states and local governments. The Forum also recommended that social and economic rights entrenched in sections 13-24 (chapter two) of the constitution should be mad justiciable. On political parties, the forum recommended a more liberal regime for the operation of political parties and that provision should be made for independent candidates. On fiscal federalism, the Forum recommended that the federating units should have control and ownership of the resources in their area but pay taxes to the federal government. The rate of such taxes should however not be more than 50 percent. The taxes will be used to set up equalisation fund and states with poor resource base will draw more from the equalisation fund. The forum also recommended the ciminalisation of coup de tats.
THE WAY FORWARD
From the above, it is clear that government has not adopted perspectives that will produce a people’s constitution. The way forward is for government to quickly form an independent commission for the review of the 1999 constitution made up of representatives of the executive, National Assembly, Non-Governmental organisations (NGOs), ethnic groups, professional groups, labour and students. The commission should be independent and should be made of people of impeccable integrity and should be allowed to operate in an open and transparent manner. The report of the commission should be subjected to a national conference and the draft constitution produced from it should be subjected to a referendum.
REFERENCES
Bagehot, W (1949), The English Constitution: Origins of Modern constitutionalism. London, Harper and Row.
Centre for Democracy and Development (2000), The Zimbabwe Constitutional Referendum. The Report of the Centre for Democracy & Development Observer mission from 12-13 February, 2000.
Citizens Forum for Constitutional Reform(2001), The Position of the Citizens Forum for Constitutional Reform (C.F.C.R.) on the Review of the 1999 Constitution of the Federal Republic of Nigeria.
Constitution of the Federal Republic of Nigeria 1999. Lagos, Federal Government Press Dare, L and Oyewole, A (1987), A Textbook of Government for Senior Secondary Schools. Ibadan, Onobonoje Press & Book Industries (Nig.) Ltd.
Ezeilo, J. N (2000), Engendering the language and Content of the 1999 Constitution. A paper presented at a Colloquium on Gender and the 1999 Constitution organised by the Citizens Forum for Constitutional Reform (C.F.C.R) in Lagos from 17th-20th May 2000.
International Institute for Democracy and Electoral Assistance I-IDEA (2000), Democracy in Nigeria: Continuing Dialogue(s) for Nation building
Jega, A. M (1999) “Popular Participation in Constitution Making: The Nigerian Experience” in Alemika, E.E.O and Okoye, F.O (Eds), Constitutional Federalism and Democracy in Nigeria. Kaduna, Human Rights Monitor
Mandaza, Ibbo (1991), “Movements for National Liberation and Constitutionalism in Southern Africa in Shivji G. Issa (Ed), State and Constitutionalism: An African Debate on democracy. Harare, Southern Africa Political Economy Series.\
Okoli, F.E. and Okoli, F.C. (1990), Foundations of Government and Politics. Onitsha, Africana-FEP Publishers Ltd.
Okoth-Ogendo, H.W.O. (1991), “Constitutions without Constitutionalism: Reflections on an African Paradox” in Shivji G. Issa (Ed), State and Constitutionalism: An African Debate on democracy. Harare, Southern Africa Political Economy Series. Oyovbaire, et al (1991), Government: A Preparation Course. Ibadan, Evans Brothers (Nigeria Publishers) Limited. Political Bureau (1987), Report of the Political Bureau. Abuja, MAMSER/ Federal Government of Nigeria. Report of the Presidential Committee on the Review of the 1999 Constitution(PCRC) Vol. 1 Main Report, February, 2001.
Sagay, I. E (1999), “Setting the Agenda for Constitutional Development in Nigeria” in Strengthening Nigeria’s Constitution for Sustainable Democracy. London, Centre for Democracy and Development. P14
Shivji G. Issa (Ed), State and Constitutionalism: An African Debate on democracy. Harare, Southern Africa Political Economy Series. The New Lexicon Webster’s Dictionary of the English Language. Danbury, CT, Lexicon Publishers Inc.
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