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CONSTITUTION MAKING IN NIGERIA: LESSONS FOR MAKING A PEOPLE’S CONSTITUTION By OTIVE IGBUZOR Secretary, Citizens Forum for Constitutional Reform (CFCR) 2, Olabode Close, Off Association Avenue, Ilupeju Estate, P.O. Box 15700, Ikeja, Lagos, Nigeria. Tel: +234 1 8043221, 4934220 E- mail: igbuzor@cddnig.org
A PAPER PRESENTED AT THE CONFERENCE ON CONSTITUTIONAL DEVELOPMENT HELD IN KIBUYE, RWANDA FROM 19- 24 AUGUST, 2001
INTRODUCTION:Nigeria is situated in West Africa. It has the largest population in any African nation (Cutter,2000:79). It has an estimated population of 120 million people. For every four black person in the world, one is a Nigerian. Nigeria is endowed with a lot of human and natural resources. It is estimated that Nigeria contains 22.5 billion barrels of oil reserves and with extensive offshore exploration has the potential to increase its reserves to 40 billion barrels by 2010 (Cutter, 2000:83). It is ironic that despite its size, population and resources, Nigeria is today classified as a poor nation. In fact, when compared with other oil producing countries of the world like Saudi Arabia, Libya, Iraq, Iran etc, Nigeria is in the poorest group in terms of gross national Product per capita income (Allen and Thomas, 2000). The reality in Nigeria today is that there is a high level of unemployment, ethnic and communal conflicts, huge external debt burden, chaotic transport system, epileptic power supply, poor health status of the people, widening gap between the rich and the poor and a high level of poverty.
In this paper, we shall give a brief history of modern day Nigeria and then situate the process of constitution making in Nigeria within that historical context. We shall then focus on the on-going review of the 1999 constitution of the Federal Republic of Nigeria. We shall conclude the paper by drawing lessons for the making of a people’s constitution.
BRIEF HISTORY OF NIGERIAThe history of modern day Nigeria can be traced to the annexation of Lagos by the British government on 6th August, 1861. This was consolidated at the Berlin conference on the partition of Africa in 1885 where Britain got the powers to recognise its rights of supervision over the territory. It has been documented that between 1861 and 1914, through a combination of force and cunning, the British had subdued the different nationalities in the Nigerian region and brought them into one political fold, modern Nigeria (Political Bureau, 1987:26). In 1914, the southern and northern protectorates were amalgamated. It has been argued that the amalgamation of the Southern and Northern protectorates in 1914 from the perspective of the British was motivated by the desire to pool resources so that the relatively rich territories of the south could assist their poorer neighbours in the North under the overall control of the British (Political Bureau, 1987:27). The British ruled the territory that later became known as Nigeria for ninety-nine years (1861-1960).
Nigeria got her independence from British colonial rule on 1st October, 1960. A civilian regime was established with the 1960 independence constitution. In 1963 the republication constitution was made. On 15th January 1966, the military struck and overthrew the civilian regime. The military handed over to civilians for brief period of four year (1979-83) and came back to rule for another sixteen years (1983-1999). Thus, out of the forty-one years of post independence Nigeria, the military has ruled for about twenty-nine years.
PROCESS OF CONSTITUTION MAKING IN NIGERIA:
The importance of constitution in the governance of any nation cannot be overemphasized. The constitution is a collection of norms and standards according to which a country is governed (Anifowose, 1999:157). The link between democracy and constitutional government is well established. It has been pointed out that although democracy is not dependent on the existence of a written set of rules in a constitution, without a constitution, there may not be practices conducive to efficiency, well being and social justice (1-IDEA, 2000:16) Constitution making and/or review is therefore of paramount importance in any country.
It has been argued that the process of making a constitution is as important as the final product (CFCR, 2001:2). In Nigeria, there has been at least ten attempts to make or review the constitution of the country. We shall divide the attempts in constitution making in Nigeria into two major phases: Colonial era (1861-1960) and postcolonial era (1960-2001).
COLONIAL ERA (1861-1960) During the period of the ninety-nine years of British rule in Nigeria, there was at least six major constitution making experiences. These include the amalgamation constitution of 1914, the Clifford Constitution of 1922, Richards Constitution of 1946, Macpherson constitution of 1951, Lyttleton Constitution of 1954 and independence constitution of 1960. According to Momoh, the amalgamation of 1914 was executed through three different constitutional instruments, all of which were made under the authority of the colonial office in London (Momoh, 200:41). In 1917 in the former Gold Coast (now Ghana), some intellectuals came together under the leadership of a lawyer Mr. Casely Hayford and formed the National Congress of British West Africa to struggle for the independence of the Gambia, Sierra Leone, the Gold Coast and Nigeria. In 1920, they sent a delegation to London asking for among other things legislative councils in all British West African territories and a West African House of Assembly. This and other pressures led to the enactment of the Clifford Constitution of 1922 by the then Governor, Sir High Clifford. The Clifford constitution created a legislative council of forty-six members out of which only four were elected. This was however the first time that Nigerians elected their representatives.
During the Second World War, the struggle for independence and self-determination increased in tempo. In Nigeria, nationalists advocated for a new constitution. As a result, on March 6, 1945, Governor Sir Arthur Richards presented the legislative council with his proposals for a new constitution, which became known as the Richards Constitution of 1946. The promulgation of the Richards constitution angered many Nigerians because the governor did not consult with the people before the constitution was enacted. This made the people to reject the constitution. The opposition to the constitution was immediate and total. Meanwhile, the Governor Sir Arthur Richard left the country a year after the constitution was enacted. The new Governor Sir John Macpherson had no option but to initiate fresh constitutional reforms. Learning from the experience of his predecessor, the making of the Macpherson constitution was preceded by a lot of consultation from the ward through the village, district and regional levels to the national level. A national conference was held on 9th January, 1950 at Ibadan to discuss the draft before it became operative in 1951.
Despite the wide consultation that went into the making of the Macpherson constitution, it had a major defect. According to the provisions of the constitution, central ministers were to be selected from among the members of regional legislatures. This made the ministers to feel loyal to their regions rather than the center leading to inter-regional frictions. This led to the constitutional conference in London in 1953 and later in Lagos in 1954, which informed the enactment of the Lyttleton constitution of 1954 under the governorship of Mr. Oliver Lyttleton. In preparation for independence, two constitutional conferences were held in London (1957) and Lagos (1958). All these made input into the making of the 1960 independence constitution.
From the above, it is clear that constitution making or review during the colonial era in Nigeria was motivated by agitation form nationalists. Nationalists were the driving forces for constitutional reform in colonial Nigeria. However, they did not participate in the actual drafting or approval of the constitutions.
POST COLONIAL ERA (1960-2001) The independence constitution of 1960 retained most of the provisions of the Lyttleton constitution. The Queen of England remained Nigeria’s constitutional monarch only represented by the Governor General. The final court of Appeal for Nigeria was the Judicial Committee of the British Privy Council. These provisions which were still applicable in “independent” Nigeria led to agitation for change. This culminated in a constitutional conference held in Lagos from 25th –26th July, 1963 where Nigerian political leaders resolved that Nigeria should become a Federal Republic. The republican constitution of 1963 was therefore passed into law by the Federal parliament on 19th September, 1963. The constitution came into force on 1st October, 1963. By the republican constitution, the Queen of England ceased to be Head of State of Nigeria and the Supreme Court of Nigeria became the final court of appeal.
On 15th January, 1966, the military took over government. In September, 1975, the military Government of Gen. Murtala Mohammed set up a constitution drafting committee made up of 50 appointed members. All the members were men. One of the appointed members (Chief Obafemi Awolowo) declined to serve on the committee and so only 49 “ wise men” produced the draft constitution. The draft was debated by a constituent assembly of elected and nominated members. The government appointed the chairman, Deputy Chairman and secretary of the Constituent Assembly. The draft of the 1989 constitution was debated by a constituent Assembly with one-third of its members appointed by the military regime. The 1995 draft constitution was debated by a constitutional conference with over one-third of the membership appointed by the military regime. Meanwhile, the election into the constituent Assembly was widely boycotted.
The constituent Assembly has been described as the most unpopular assembly in Nigeria’s history. Out of a voting population estimated at 30 Million, less than 350 people bothered to vote. The rest either stayed away in protest or were completely indifferent. Not only that, one third of the total membership of the conference were hand picked nominees of the Abacha junta-most of whom were economic vampires and political charlatans………..(Quoted in Obayuwana, 2000:74)
On 11th November, 1998, Gen Abdulsalami Abubakar inaugurated the constitution debate coordinating committee headed by Justice Niki Tobi. The committee was asked to submit its report by December 31st , 1998.
From the above, it can be seen that constitution making in post colonial Nigeria has been dominated almost entirely by the military. Apart from a minor amendment to the 1960 constitution in 1963, all constitution making review activities in Nigeria have been done by the military. It has been argued that there is an “intrinsically contradictory relationship between the military and democracy” (Momoh and Said, 1999: 288) The military is therefore not capable of engineering a constitution that will ensure a durable democracy.
PROBLEMS WITH THE 1999 CONSTITUTION:There are problems with the process of making the constitution as well as the content of the constitution. The constitution was made during a military regime. The constitution was approved by the Armed Forces Ruling Council made up of 26 persons all males. The people did not participate in the process of making the constitution. This is why the preamble which begins with “WE THE PEOPLE of the Federal Republic of Nigeria……..do hereby make, enact and give to ourselves the following constitution” has been severely criticised in Nigeria as being a false claim (Kuye, 2001:XV). This is why we can say that although the 1999 constitution is a legal document, it is certainly not legitimate.
The content of the 1999 constitution does not take into account the political history of the country. In addition there are a lot of inconsistencies and provisions that do not meet the wishes and aspirations of the people. A few examples will illustrate this point. First and foremost, the history of Nigeria shows that it is a federal system. But the constitution is very unitary. There is over concentration of powers at the centre. The constitution establishes a judicial council to control the appointment, promotion and discipline of both state and federal judicial officers. Secondly, the language of the constitution is problematic in two respects. It is written in masculine gender as if there are no women in Nigeria. Again, it is written in legal jargons that are very difficult to understand. The trend today is to write constitution in a simple language that the average person can understand. Thirdly, the constitution does not guarantee economic, social and cultural rights. Provisions for adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, unemployment and sick benefits and welfare of the disabled are provided for under chapter two titled fundamental objectives and directive principles of state policy. These provisions are not justiceable under the 1999 constitution and cannot be enforced. Meanwhile, these are the issues on which majority of Nigerians want priority attention. Fourthly, there is a lot of inelegant drafting. For instance, section 222 dealing with the registration of political parties gives the impression that political parties only need to register with the Independent National Electoral Commission (INEC) but Section 40 gives the proviso that INEC will have to accord recognition to the parties. Another example of inelegant drafting is Section 156, which prescribes the same qualifications for members of Federal executive bodies of which INEC is one and members of the House of Representatives. Meanwhile, Section 65 gives membership of political parties as one of the qualifications for becoming a member of the House of Representatives. This means that members of INEC charged with the responsibility of organising and supervising elections in the country must be members of political parties. We do not think that this is the intention of the constitution.
Moreover, the 1999 constitution not only continues the marginilisation of women but also discriminates against women. There is no specific equality clause. There is no affirmative action clause. Whereas Section 26 makes it possible for any man to confer citizenship on his foreign spouse by registration, the same right is not extended to women. In addition, the constitution does not provide a liberal regime for political parties to operate. Finally, the constitution vests all the resources in the country on the federal government. There is no doubt that this is a negation of the principles of fiscal federalism. We cannot but agree with Ihonvbere when he argued that “ the 1999 constitution failed to address in its entirety the character of the state; the nature of the custodians of state power; the critical issue of hegemony and the inability of the elite to initiate a national project; the national question, production and exchange relations; and other primordially determined or constructed identity questions.(Ihonvbere, 2000a:8)
REVIEW OF THE 1999 CONSTITUTION:The 1999 constitution ushered in the civilian regime after about sixteen years of uninterrupted military rule (1984-1999). The civilian regime was inaugurated on 29th May, 1999. Barely one month later, the Centre for Democracy & Development, a leading Non-governmental Organisation in the West African subregion organised a conference on the 1999 Constitution and the future of Democracy in Nigera from 30th June – 2nd July, 1999. At the conference, the Citizens’ Forum for Constitutional Reform was formed. The Forum is a coalition of civil society organisations committed to a process led and participatory approach to constitution making in Nigeria. At present, the coalition has over seventy members. At that same conference, the Hon. Attorney General of the Federation and Minister of Justice, Mr. Kanu Agabi gave a commitment that “ we will do what we can to set in motion the process to amend the constitution” (CDD, 1999:6). Barely two weeks after the conference, the president, General Olusegun Obasanjo (Rtd) announced the establishment of an eighteen member party technical committee to review the constitution. Each of the three registered political parties (Peoples Democratic Party, All Peoples Party and Alliance for Democracy) was expected to nominate six members. When the parties sent in their nominations, they did not include women. The membership was therefore increased to eight to accommodate women. In the year 2001, the National Assembly formed a joint Committee on the review of the 1999 constitution. It must be noted that this is the first time in the history of Nigeria that the people have an opportunity to make a constitution for themselves under a civilian regime.
THE MAKING OF A PEOPLES CONSTITUTION:We have argued elsewhere that constitution-making experience in Africa shows that there are two distinct strategies; the old approach and the new approach. In the old approach, the government appoints or stage manages the election of a constituent assembly, parliamentary committee, technical committee, special task force or select committee of conservative lawyers and politicians to write a constitution for the country. The process of the old approach ensures that there is little or no debate, no consultation with ordinary people and no referendum on the draft constitution before it is decreed or passed into law. Even if the process allows some limited debate the result is predetermined and manipulated and not informed by the logic and content of the debate……..The new approach is a process led and participatory approach that puts a lot of premium on dialogue, debate, consultation and participation. It is guided by principles which include among others diversity, inclusivity, participation, transparency and openness, autonomy, accountability and legitimacy. Inclusivity means that all voices and opinions including those of minority groups should be heard and reflected. Efforts must be made to bring in the views and concerns of people from all works of life. Every identifiable community should be invited, assisted and encouraged to participate in the review process. Nationality groups, women, students, the armed forces, the illiterate, the disabled, the poor, the rural dwellers, the youth, professions, trade unions, religious groups, traditional rulers, community organisations, prisoners, human rights organisations, pro-democracy groups, political parties, cultural organisations etc. should be involved to say what they will like to see in the constitution. Diversity entails that the Committee charged with the review process and the process itself must reflect existing diversity in terms of ethnic identity, language, religion and gender. It is the responsibility of the country’s leadership and those leading the process to ensure that this diversity is reflected. If this diversity is not reflected, the final document cannot claim to be democratic, legitimate and reflective of popular view. The principle of Participation requires that the process must take on board the involvement of people at all levels in debating freely the content of the constitution. Every effort must be made to ensure that people participate in the process. 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. It is necessary that the people not only participate in the process but also should have easy access to the process and the final constitution; understand it and use it in the defence of their individual and collective rights. The principle of participation is pivotal because the centrality of constitution to the democratic process is increasingly being recognised by scholars, activists and governments all over the world. Transparency and Openness requires that the process must be transparent and open and must be seen by all to be so. To ensure transparency and openness, all submission made to the review panel; analysis of the submissions and the draft constitution should be filed, annotated, published and circulated widely. Furthermore, anyone who submits a memorandum should be acknowledged and drafts and final copy of the constitution sent to him/her. Another basic principle is autonomy. The body charged with leading the review process must be autonomous and independent from government control. It should not be tied to the whims and caprices of any arm of government. Furthermore, the final document to emerge from the process must not be tampered with by the government, and the process must be seen to be free from government control. In addition, the body charged with the responsibility of reviewing the constitution must be accountable to parliament and the people. There should be periodic publication of report and progress of work in an open and transparent manner. Finally, the process should be guided by the principle of legitimacy. A national referendum should be conducted to test the popularity of the draft constitution. The minimum vote for approval should be 51% of “yes” votes. The referendum will further popularise the contents of the constitution and give the people the opportunity to review the draft constitution and be sure that politicians have not eliminated their collective views. Apart from the principles outlined above, the new approach utilises diverse mechanisms such as appointment of an independent commission to direct the process, elaborate public enlightenment and civic education and in built mechanism for making the people of the country to claim ownership and authorship of the constitution (Igbuzor, 2001:3)
From the above, it is clear that the making of a people’s constitution can be brought about only by the new approach. However, the history of constitution making in Nigeria shows that the old approach is always utilised. During the colonial era, it was the colonialists who formally initiated and drafted a constitution for the country. In postcolonial Nigeria, it is only the Military that has made constitutions (1979, 1989, 1995 and 1999). The current review exercise going on in Nigeria represents the first attempt by a civilian regime to review the constitution. This would have offered Nigerians an opportunity to lay the foundation for a constitutional democracy. Unfortunately, the ongoing exercise is beset with a lot of problems. First, the committee set up by the president was made up of party representatives. Meanwhile, it has been documented that political parties in Africa are 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, 2000:34). Secondly, the committee set up by the president lacks the courage to make the necessary recommendations for amendment based on the submissions of the people. The committee claimed in its report to have received about two million written memoranda and one and a half million oral presentations. The committee gave an analysis of the submissions in its report. Meanwhile, the recommendations of the committee for constitutional amendment was not in accord with their own analysis. For instance, the report recognised that one of the contentious issues raised about the constitution is “that it does not fully establish without contradictions the secularity of the Nigerian state” (Report of the Presidential Committee, Vol. 1 p.4). But in its recommendation, the committee recommended that sections10 and 38 which deal with religion should be retained in the constitution as they are (Report of the Presidential Committee, Vol. 1 P.51). Thirdly, there is no co-ordination of the various efforts to review the 1999 constitution. The Presidential committee has submitted its report to the president with a draft-amended constitution. The national assembly has just started to collect another round of memoranda. The civil society is organising conferences, conducting researches and collating opinions. There is no co-ordination among these efforts. This is compounded by the fact that there is no timetable or carefully planned programme for the review process. Finally, the review process by the government is utilising the old approach, which cannot produce a people’s constitution.
LESSONS FOR MAKING A PEOPLE’S CONCLUSION:A people’s constitution is a constitution made by the people utilising the new approach. The people not only participate in the process of making a people’s constitution but the content reflects the history, wishes and aspirations of the people. There are a lot of lessons that can be learnt from the experience of constitution making in Nigeria. First, it has shown that political leaders on their own volition hardly decide to bring about fundamental constitutional reforms. In colonial Nigeria, the driving forces for constitutional reform were the nationalists. In post colonial Nigeria, the driving forces are civil society and pro-democracy activists. Secondly, political parties and the political class are not interested in fundamental constitutional reforms. They are more interested in capturing and exercising political power. In Nigeria, the 1999 elections were conducted without enactment of the law authorising the constitution. It was after the elections, just before the swearing in ceremony that the constitution was released. Politicians contested for positions without the knowledge of the constitutional provisions regarding the positions they were contesting for. Meanwhile, the absence of a constitution was not an issue during the electioneering campaigns. Thirdly, constitution making in Nigeria is always based on the old approach. The people do not participate and so cannot relate to the final document as their own. The people are alienated from the political process and the end result is lack of respect for the rule of law, corruption and conflict. Fourthly, the leadership of a country has a big role to play in initiating the process for making people’s constitution. If the leadership is honest and committed to constitutional reform, then a lot of progress will be made. But as Ihonvbere has argued “when a leadership is resistant to reform and openly engages in repressive practices to prevent a public discussion of reforms, no matter when reform is eventually initiated, such a leadership has already squandered the goodwill for genuine constitutional reform” (Ihonvbere, 2000b:94). Finally, the civil society has a great role to play in constitutional reform. The civil society in Nigeria led by the Citizens Forum has been able to isolate the fundamental issues of the 1999 constitution and placed them on the public domain. They have X-rayed the 1999 constitution and shared experiences from other parts of the world with Nigerians. They have led the debate on the review of the 1999 constitution. They have also made far reaching recommendations for a fundamental review of the of the constitution. Whether these recommendations will find their way into the reviewed constitution will depend on the balance of forces between agents of change and those who want to preserve the status quo.
From the above, it is obvious that any nation that wants to make a peoples constitution must avoid the pitfalls of the Nigerian process. In any case, there is no alternative to the making of a peoples constitution in any African country that is interested in bringing about democratic renewal that is so badly needed in the continent.
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