Governance and Constitution Reform

Governance and Constitution Reform in the Fourth Republic:

The Nigerian Experience[i]

By Ikubaje John[ii]

A peep at several political literatures today attests to the fact that democratic governance is globally acclaimed to be the best form of government. The justification for the above claim is based on the following factors among several others; its principle of participation in decision-making, respect for the rule of law, adequate provision for human rights protection etc. It has been argued that democracy allows the majority to have their way but creates room for the minority to have their say, yet the experience in Nigeria since May 1999 has proven otherwise.

The process that led to the ushering in of the Fourth Republic was borne out of an unprepared state-of-affairs. The late Gen. Sanni Abacha was planning how he would hand over power to himself when death suddenly struck, which was what created room for the emergence of Gen. Abdulsalam Abubakar as head of the Nigerian state. As at the time his regime took over the leadership of the country, Nigerians were already tired of military dictatorship, and regime attitudes of Nigerians towards the military rule forced the Abdulsalam Abubakar regime to hurriedly put in place a transition programme that ushered Nigeria into the Fourth Republic.

Many transitional issues, as mentioned above were hurriedly addressed by the Abubakar Regime. One of such issues was the setting up of the Constitution Drafting Committee headed by Justice Niki Tobi. The committee was given a timetable of two, three months to solicit inputs from over 120 million Nigerians.[iii] This constitution-making approach marked the beginning of constitution problem that has beset the Fourth Republic. As rightly argued by Hart, a democratic Constitution cannot be written for a nation nor can it be written in haste.[iv] The 1999 Nigerian Constitution was not only written in haste, but was designed and packaged for Nigeria’s Fourth Republic by the military regime headed by Gen. Abubakar.

Having laid the preceding foundation and for the sake of the easy linkage of concepts, it is important to anchor the introductory aspect of this paper on the understanding of the following: constitution, constitutionalism, constitutional amendment, constitutional reform and good governance. Like other social science concepts, the above have been defined in various ways, but for the sake of this paper, these concepts would be defined as follows. A Constitution is the totality of rules and regulations, both legal and non-legal, which ordain, order, regulate and sustain the government of a given country.[v] In his own definition, Justice Albie of South Africa argues that a constitution is the autobiography of a nation.[vi]

A recent study of the constitution-making processes of over 25 countries across the world shows that there is a new trend that is emerging towards providing for more direct participation by the people in the constitution making process, through their consultation in a very popular manner, rather than the legal experts approach to constitution drafting. Some scholars have argued that this new trend in constitution making is the new constitutionalism.[vii] However, this paper will differ in its definition and see constitutionalism as the adherence to the spirit and letter of the Constitution.[viii]

Furthermore, it is not uncommon these days to see people, even some scholars of high repute, mis-conceptualising and interchanging, for each other, the concepts of constitutional reform and constitutional amendment. The former is a holistic approach to fashioning out a new Constitution and this involves changing the whole basis of a constitution. The process through which this is achieved must take on board all stakeholders (the citizens). The latter is an amendment to an existing constitution in which the underline framework of the document remains intact.[ix] In his definition, Daniel Eleazar argued that constitutional reform is that which involves the embodiment of the constitutional tradition of the body politic in appropriate binding rules of the game that properly reflects the polity model basis and socio-economic distribution of power.[x]

Nigerians are presently arguing that national dialogue/ conference is the panacea to the country’s constitutional problem (constitutional review) and not the need for an amendment, and that the National Assembly, as presently constituted, cannot review the 1999 Constitution but can only amend it. This argument is based on section 58, sub-sections 1-5 of the 1999 Constitution, which empower the legislators to amend the existing constitution through bills without tampering with the underline frameworks of the document.[xi]

Finally, good governance; it would be appropriate to know what governance is before defining what good governance connotes. Governance is the process of decision-making and the process by which decisions are implemented or not implemented within a system of government,[xii] while good governance according to Nsibambi, former Prime Minister of Uganda is: “the exercise of politico-administrative and managerial authority and order which is legitimate, accountable, transparent, democratic efficient and equitable in resource allocation and utilization and responsive to the critical needs of promoting human welfares and positive transformation of society. It manifest itself through benchmarks which include a constitution pillars of the state derived from the constitution, mechanisms for checks and balances on government, efficient mechanism of delivery of services by government, security, good leadership, the rules of law, participation by the people, freedom of expression, transparency, accountability, legitimacy, devolution of power, informed citizenry, strong civil society, protection of basic human rights, regular free and fair election, good local and international relations, political stability, protection of property and life.”[xiii]

Looking at the above definition, although, it might have its limitations yet it would be right to argue that a legitimate constitution remains one of the most significant instruments to actualising good governance. In other words, the involvement of the people in the making of their Constitution is one of the surest ways to guarantee peace and development.

A constructive analysis of governance in Nigeria’s Fourth Republic from May 1999 to May 2004 will show that the outcome of democratic rule under President Olusegun Obasanjo has been a mixed bag of blessings and frustrations, with its failures overshadowing the blessings. Although, five years of democratic rule might be considered too short to reconstruct the damages that fifteen years (December 1983 – May 1999) of military rule has caused. The fact that Obasanjo’s policies and programmes has failed to yield the least expected democratic dividends has made some Nigerians civil society organisations and political parties to engage in demonstrations and rallies to express their grievances against the failure of Nigeria’s Fourth Republic.

The quest for institutional legitimacy and good governance made the Nigerian Civil society and the government of President Olusegun Obasanjo to embark on a review advocacy and the amendment of the 1999 Constitution respectively. Nigerians argue that the document was an imposed constitution. It would be of interest to note that by the time the Fourth Republic politicians were elected, they had not seen the 1999 Constitution that would guide their operations; what an irony!

Immediately after the Fourth Republic was inaugurated in 29 May 1999, the majority of Nigerians unanimously condemned the constitution, however they realised that the constitution is a legal but illegitimate document; an imposition of military despots, and to crown it all, a bible of contradiction.

In response to the above criticisms, the Federal Government inaugurated the Presidential Technical Committee on the review of 1999 Constitution on 19 October 1999.

The following members of the committee were appointed by the presidency from the three major political parties, People’s Democratic Party (PDP), All Nigerian People’s Party (ANPP) and Alliance for Democracy (AD):

Chief Clement Ebri Chairman
Dr. Shettima Mustafa Deputy Chairman
Air Cdre Bernard Banfa (rtd) Member
Chief Edwin Ump Ezeoke Member
Alhaji Abdulhamid Hassan Member
Hon. Barr. Sunday Kuku Iyakwo Member
Alhaji Iro Dan Musa Member
Barrister (Mrs.) Iyabode Pam Member
Alhaji Gambo Moh’d Saleh Member
Alhaji Isiaku Mohammed Member
Hajiya Basirat A. Nahibi Member
Dr. J. C. Odunna Member
Prince Valentine Ahams Member
Chief Alani Bankole Member
Alhaji Umaru Ahmed Member
Dr. Amos Adepoju Member
Barrister Mohammed Babangida Umar Member
Col. Yohanna A. Madaki Member
Dr. Stella Dorgu Member
Dr. Silva Opusunju Member
Barrister Edward Ashiekaa Member
Barrister Mika Anache Member
Dr. Olu Agunloye Member
Dr. Maxwell Gidado Member

As stated elsewhere, the Federal Government expended millions of Naira on that project. In order to complement the Federal government effort on such a potentially laudable development assignment, a foreign donor, Ford Foundation, granted the Federal Government millions of dollars to complete the review of the 1999 Constitution. The committee acquired rooms at the Sheraton Hotel, one of the most expensive and least accessible to the poor in Abuja as its secretariat, from which it sought to collect memoranda from Nigerians; it gave less than one month for people to submit memoranda and went round to selected state capitals to organise public hearings. The committee also held zonal conferences in the six-geo political zones in the country to consult the elites. In the same manner, the reports of the committee, which came out in two volumes, were also presented to Nigerians in major cities. However, a majority of Nigerians boycotted the committee’s presentations, which were also marred by violence in some cities. Violence, for example, erupted in Enugu, the headquarters of the South East geo-political zone over the report of the committee. One serious question by the Nigerian civil society organisations working on gender issues to the committee, which is yet to be answered till today, is why the Presidential Technical Committee on the 1999 Constitution Review decided not to make public its published Gender Report to Nigerians.[xiv] In his comment on the Presidential Technical Committee’s work on the review of the 1999 Constitution, Igbuzor described it as a subversion of Nigerians’ will.[xv]

In order to complement the above effort of the presidency, the first term National Assembly during this same Fourth Republic, set up a joint committee of both Houses to review the 1999 Nigerian Constitution. Despite the fact that Section 58 of the 1999 Constitution makes provisions for the National Assembly to amend the Nigerian Constitution without similar provision backing up the work of the presidency, the National Assembly relied heavily on the work of the Presidential Technical Committee to draft a model constitution for Nigeria. The amendment exercise carried out by the first term National Assembly was less commendable, compared to that of the presidency. In other words, the first term National Assembly devoted its four- years term to learning how to review the Nigerian Constitution.[xvi]

The second term National Assembly, in an attempt to complete the work embarked upon by its predecessor, set up a new joint committee of the Houses, the House of Representatives and the Senate, to amend the 1999 Constitution. The committee also set up the following six sub committees:

The Co-ordination sub-committee

§ The Deputy Senate President Chairman

§ The Deputy Speaker Vice Chairman

§ Senator Ayu Abubakar North-East

§ Senator Uche Chukwumerije South-East

§ Senator David Brigidi South-South

§ Senator Olorunmbe Mamora South-West

§ Senator Tunde Ogbeha North-Central

§ Senator Dansadau North-West

§ Senator Daisy U. Danjuma North-West (Women Representative)

§ Hon. Alex Nwofe South-East

§ Hon. Jan Adon South-South

§ Hon. Peter Orimoloye South-West

§ Hon. Yahaya Yunusa North-Central

§ Hon. Ibrahim Baba Chakhai North-West

§ Hon. M. U. Kumalia North-East

The judiciary Sub-committee

§ Senator Martyns Yellowe South-South

§ Senator Tawar Umbi Wada North-East

§ Senator Farouk Bello North-West

§ Senator Mohammed Ahmed North-Central

§ Senator Robert Koleosho South-West

§ Senator Ike Ekweremadu South-East

§ Senator Iyabo Anisulowo (Women representative)

§ Hon. Essien Ayi South-South

§ Hon. Godwin Agbo South-East

§ Hon. Jokoye George South-West

§ Hon. Ahmed Salik North-West

§ Hon. Ahmadu Musa North-Central

§ Hon. Yerima Idris North-East

§ Hon. Abubakar Bwari North-Central

The Executive Sub-Committee

§ Senator David Mark North-Central

§ Senator Umar A. Ambagda North-East

§ Senator Patrick E. Soaked South-South

§ Senator U. K. Umar North-West

§ Senator O. Ehinlanwo South-West

§ Senator Ifeanyi Ararume South-East

§ Hon. Mao Ohuabunwa South-East

§ Hon. Bala Ingilari North-East

§ Hon. N. Umossoh South-South

§ Hon. Sidi Ali North-Central

§ Hon. Alabi Paul Tukur North-West

§ Hon. A. Abiodun South-West

§ Hon. Toyo Minima (Women Representative)

The Supplement and Central Provisions Sub-Committee

§ Senator Udoma Udo Udoma South-South

§ Senator Bello M. Yusuf North-West

§ Senator Mamman Ali North-East

§ Senator Azu Agboti South-East

§ Senator Idris Ibrahim Kuta North-Central

§ Senator James Kolawole South-West

§ Senator Umaru Dahiru North-West

§ Hon. Wumi Bewaji South-West

§ Hon. Sheba Sale Hassan North-Central

§ Hon. Osinachukwu Idozu South-South

§ Hon. Jerry Ugokwe South-East

§ Hon. Abdul Ahmed Ningi North-East

§ Hon. Fatima Temba (Women Representative)

§ Hon. Muktari Dikko North-West

Human Rights Fundamental Objectives and Directive Principles of State Policy Sub-Committee

§ Senator Isa Maina North-Central

§ Senator Mahmud K. Bello North-West

§ Senator A. A. Ibrahim North-East

§ Senator Akinlabi Olasunkanmi South-West

§ Senator Ewa Henshaw South-South

§ Senator A. D. Sodangi North-Central

§ Senator Uche Chukwumerije South-East

§ Hon. Bashir Bala Koko North-West

§ Hon. Shaibu Abdullahi North-Central

§ Hon. Buhari E. Abdullahi South-West

§ Hon. Bolous Indiamaowei South-South

§ Hon. Joel Danlani North-East

§ Hon. Alex Nwofe South-East

§ Hon. M. Afinima (Women Representative)

The Judiciary Sub-Committee held a public hearing at the National Assembly complex in January 2004, and only few NGOs, individuals and senior Nigerian judicial officials were present in that meeting. It took thirty minutes for the representatives of CFCR to gain access to the hall where the public hearing took place at the National Assembly Complex, Abuja. Many Nigerians were not allowed access by the security men into the venue of the public hearing. The Executive sub-committee held its own public hearing in March 2004 with much emphasis on the elected representatives’ tenure of office. Governor Boni Haruna of Adamawa State was there to present his own position, which was widely published in the Nigerian newspapers. Other sub- committees are yet to hold their public hearings till date. Attempt by CFCR, Gender Action and Development Action (GADA) and other civil society organisations working on constitutional reform advocacy to organise a roundtable meeting with members of the National Assembly Joint Committee on Constitutional Review for the committee and civil society organizations to share ideas and rob minds on the work of the committee was not successful.

A unanimous condemnation of the 1999 Nigerian Constitution, by both the Nigerians civil society and the elected representatives confirms the fact that the constitution is faulty. Adherence to the spirit and letters of a constitution (constitutionalism) that does not reflect the history, wishes and aspirations of the people that makes up the country can never lead to good governance. The above argument partly underlines why some Nigerians have been calling for a national conference to address the contentious issues in the Nigerian Constitution.

In the course of its work, CFCR has identified the following, amongst others, as the contentious constitutional issues that need urgent attention:

· Gender gaps inherent in the 1999 Nigerian Constitution;

· Federal Government and its over concentration of power at the centre (federalism);

· Disregard for human rights, lack of adequate access to justice and the rules of law;

· Non justiciability of socio-economic rights in the 1999 Nigerian Constitution;

· Practically dependent commissions that are entrenched in the 1999 Constitution as independent commissions.

Other problematic issues in the constitution include the security sector, citizenship and residency rights, revenue allocation, corruption, national conference and resource control, etc.

For the government to constructively address the above issues, it must stop its monopoly of power and undue influence over the reform of the 1999 Constitution. It must demonstrate willingness to review the 1999 Constitution in accordance with Nigerians’ desires. In order to accomplish the above therefore, the government of president Obasanjo must holistically take a cue from the following progressive constitutional reforms that took place on the African continent in the past few years: Uganda, Eritrea, South Africa, Ghana and Zambia.

The first thing to do is to set up an Independent Constitution Review Commission to review the Nigerian Constitution. This initiative can emanate from the executive, legislature or the Nigerian civil society. The legislature must pass a bill to this effect; this process will guarantee the legality of the final output of the commission. The composition of the commission must be fairly representatives of different ethnic groups, professions, religious groups, political parties, the government – the executive, legislature, the military and other relevant social groups.

Going by Neil Kritz’s argument, the establishment of an Independent Constitution Commission is a deliberate arrangement geared towards providing for more direct participation by the population in the constitution-making process, in the form of civic education and popular consultation. He further argued that the commission must carry out its assignments in line with the following four phases:[xvii]

1. PUBLIC EDUCATION – The commission must educate the civil society (the citizens) by disseminating information regarding the contents, contentious issues in the existing constitution and the constitutional review process etc. This would form the basis of the new constitutional framework.

2. PUBLIC CONSULTATION – This phase would solicit the views of the citizens on what the feel should be entrenched in the constitution. This phase would be devoted to asking series of specific key questions and issues regarding the constitution. The message or questions can be pass through radio, cartoons; travelling theatrical presentations etc. Although, it is important to stress here that proper planning, adequate resources (human resources and finance are needed to accomplish the above).

3. DRAFTING OF THE CONSTITUTION – This is the stage where the commission would harmonize all the submissions into a model constitution for public debate.

4. LEGITIMISING THE DRAFT CONSTITUTION – This final stage is to reject or accept the draft constitution produced by the commission by the citizens. This is where the question of legitimacy comes in. Experiences on constitutional review shows that two approaches can be adopted to legitimise a draft model constitution. The first one is the setting up of a broadly representative Constituent Assembly (CA) like that of South Africa. When there is broad democratic representations in such an assembly there is greater likelihood that all aggrieved parties will have an opportunity to express their views on key constitutional issues of importance to them and perhaps more importantly there is greater likelihood that their views will be taken into consideration in the drafting of the final document. This process does help to create room for ownership of both the process and the content of the document.

The second approach, which originated from France, is what some scholars called the French Model. A draft constitution, under this system is subjected to a national referendum. This was the approach utilised by Ghana and Zimbabwe to legitimise their constitutions of 1996 and 1999 respectively. Although, the experience of Zimbabwe was marred with electoral malpractices and this led to protest against the adopted constitution by the civil society. Political analysts have argued that this was partly so because the referendum was organised and sponsored by Mugabe’s government. Such referendum must be organised by the Constitutional Review Commission with support from Independent National Electoral Commission if need be and not the government of the day.

Finally, the way forward therefore is that Nigeria government should as a matter of urgency set up an Independent Constitution Review Commission to conduct a national conference on Nigerian 1999 Constitution to produce a constitution that Nigerians can lay claims to as their constitution. The following principles as argued by CFCR must therefore guide the operation of the Commission to achieve the peoples Constitution:

· Participation

· Accountability

· Inclusivity

· Transparency and openness

· Legitimacy

· Accessibility

· Empowerment of the civil society etc

If a coalition of civil society organisations like CFCR with lesser resources compare to the Federal Government can initiate a process that led to the organisation of several conferences in different communities across the country, organise state and regional dialogues on the 1999 Nigerian Constitution and crown it with a national conference that attracted thousands of Nigerians representing different socio-political, ethnic, religious and professional organisations to produce a model constitution, I have unwavering believe that the Federal Government can do better if the political will is there to produce a democratic and acceptable constitution for the country.