Constitutional Amendment Not Sovereign National Conference Is Pathway To A Reformed Polity

By

Adebayo Adejare

adejarelegal@yahoo.com

February 15, 2006

Contrary to popular thought, there is in fact no new 1999 Constitution. What we have is the re-adoption of the 1979 Constitution. Decree 24 i.e. the Constitution of the Federal Republic of Nigeria (Promulgation). Decree 1999 states in the preamble that the Abubakar Administration has consulted with Nigerians through public hearings etc, and came to the conclusion that the general consensus of opinion of Nigerians is the desire to retain the provisions of the 1979 Constitution with some amendments.

Hence the Decree was promulgated to take effect from 29^th May, 1999 the date Abubakar Administration quit office. We would be correct to describe what we have as the 1979 Constitution because the amendments contained in the new document are not significant enough to make the document substantially new. The innovations are few and can be briefly summed up as follows:

1.                  Inclusions of Environment Objectives as one of the Fundamental Objectives and Directive Principles of state.

2.         Inclusion of non-justifiable duties of the citizen.

      3.         Provision for dual citizenship and renunciation of citizenship which were     

            absent in the 1979 Constitution.

4.                  Inclusion of Right to acquire and own immovable property anywhere in 

Nigeria.

5.                  Provision for re-call and remuneration of legislators.

6.         Provisions in case of death of president or governor before swearing in and

            their disqualification from other jobs.

7.         Empowerment of Vice-president and Deputy Governor to act during

            temporary  absence of president or governor.

8.                  Detailed provisions establishing High court, Sharia and Customary Court of

            Appeal for the federal capital territory.

9.                  Removal of jurisdiction over election petitions from courts to election

                  tribunals.

10.              New provisions for state of emergency, resignations from office, limited

                  immunity for governors and president and baring of foreigners who obtained   

                  citizenship or naturalization from holding public office for 10 years. 

The Abubakar Administration secretly deleted the Rotational Presidency and the Constitution Court provision of the 1995 Abacha Constitution against the wishes of the majority of Nigerians. Abubakar held no consultations. He set up a small in-house Committee at Aso Rock headed by Hon Justice Niki Tobi who also headed the National Political Reform Conference 2005 that proposes amendments to the same document. Abubakar published the 1999 Constitution and the Electoral Law AFTER the 1999 Elections. It is to be noted that the 1989 Inchoate Babangida Constitution was merely a repetition of the same 1979 Constitution.

1979 Constitution is and remains our best and most lasting experiment in Constitution making since Independence in 1960. It is the only Constitution that was fashioned with full consultation and debate by the people of Nigeria. It was preceeded by a 50-man Constitution Drafting Committee and a Constituent Assembly elected on no-party basis by an electoral college consisting of Elected Local Govt. Councilors. That Constitution was published in all major languages and widely circulated before and after adoption.

There is no doubt that the best transition program to democratic rule we have had so far is the 1978-79 Murtala Mohammed/Olusegun Obasanjo Transition Program. At the Constituent Assembly 1978 led by Hon Justice Dr Udo Udoma (of Blessed Memory) a lot of issues regarding the corporate existence and governance of Nigeria were (except for Sharia) amicably resolved. These include the choice of presidential as opposed to parliamentary system of govt. type and structure of federalism, prohibition of state religion etc.

The 1979 Constitution was operated for only about 4 years before the Military executed a coup d’etat led by Buhari and Idiagbon. Hence Nigerians were deprived of the chance to run and test the 1979 Constitution sufficiently to enable them accept or reject it provisions. Within the 4 years however Politicians governed under its provisions and there are no agitations against the provisions. In fact those who came to sincerely serve their people did not complain that they were hindered by the constitution.

There was healthy competition between the NPN-controlled federal government and the state governments controlled by the five registered political parties. Those who are criticizing the 1999 Constitution must therefore talk in practical terms guided by our previous experience rather than in abstract. It is respectfully submitted that since 1979 the problem of power politics and governance in Nigeria can be traced not to any defect in the document itself but to those operating the document. For a heterogeneous and multi-ethic country like ours what we need is a federal system.

Also in a multi-religious country like ours the prohibition of state religion is desirable. For purpose of accelerated development he presidential rather than the parliamentary system was considered and deemed suitable. All these issues were hotly debated in memoranda, discussions papers etc, before final adoption at the Constituent Assembly in 1978.

The position of those who call for a sovereign national conference on the basis of defects in our 1999 Constitution is therefore faulted. No one is saying that the document is perfect. This writer personaly disagrees with some of its provisions particularly the prohibition of state police, the provisions of 13% of Mineral Revenue to the area of derivation and mischievous deletion of rotational presidency and Constitutional Court under the then existing Abacha Constitution.

These matters are matters of Constitutional Amendment which the National Assembly is empowered to do. Speaking for myself the document is too unwieldy. Detailed provisions on judicature, election and qualification of public officers and political parties are unnecessary. They are not constitutional matters but regulatory matters to be dealt with by way of regulations by the judiciary authorities and the election authorities. We need is a readable document not too long and which carries only the most fundamental provisions particularly fundament human rights, concurrent and legislative exclusive lists separation of powers and fundamental objectives.

But beyond legal and constitutional provisions the core of dissatisfaction expressed recently is the injustice and lopsided nature of the polity itself. Although we talked of freedom equality and justice we have over the years not matched our words with actions. Under the cover of the military, rulership of Nigeria has been dominated by one section of the country. Resources of the country have been expended on one section or otherwise dissipated to the detriment of others (the majority) including the mineral producing areas.

There is also the question of inequality and social imbalance that has enabled people of one section of feel and act superior to others while the issue of religious discrimination remains prohibited only on paper. Are these matters of constitutional amendment or matters resolvable only by sovereign national conference?

It is respectfully submitted that the election of General Olusegun Obasanjo a Southern Christian with support mainly from the north and the east has negated some of our reasons for calling for a sovereign national conference. Power has shifted from north to south although we concede that the threat of secession by the south over annulment of June 12, 1993 election contributed largely to making the power shift a reality. It confirms that our 1979 vision of one united indivisible Nigeria is still alive more so since Obasanjo’s own tribe the Yorubas rejected him.

By that choice (at least by those who voted for him) we have opted for unity instead of disunity. His candidature (we knew) represented the vision of one Nigeria which he has devoted the major part of his life fashioning and defending. It is just too naïve and ridiculous to expect him to now preside over the dismemberment of Nigeria. The PDP itself have shown that as a party no price is too high to be paid for the corporate existence of Nigeria hence they sought out Obasanjo’s candidacy even though many prominent politicians within the party also desired the office and contested many times before.

It cannot be described as tribal party because the pattern of voting at the elections shows clearly that the party’s support-base covers the entire country. It omits sovereign national conference from its program and neither does it promise confederation yet the Ibos and the Southern minorities voted massively for it. It now controls the National Assembly; how then can we expect its leaders in and out of govt. to champion those issues? The protagonists of sovereign national conference have a Herculean task of altering by persuasion or otherwise the vision of Nigeria held by the leaders of the dominant party.

The ideas of “Sovereign” in the conference is not going to be acceptable to either the Presidency or the National Assembly because you cannot have two sovereign entities at the same time and common sense dictates that the amplitude of the law and constitution making powers of the National Assembly is wide enough to cover all issues in contention. In fact all the issues in contention i.e. confederalism, Devolution of powers, ownership of mineral resources can be tackled either through legislation or power politics.

The idea of confederation was mooted at the Aburi Conference at the point of Ibo secession in 1966 and was roundly rejected. It was robustly discussed at the Constituent Assembly in 1978 and rejected. It is laden with inherent structural difficulties and precedents are not readily available either in Africa or elsewhere (apart from Switzerland). For now we are yet to be told into how many Confederal Regions Nigeria will be broken.

The problem of minorities (north and south) currently resolved through creation of states is likely to resurface in any proposed confederal arrangement. It is even doubtful if a state like Ekiti State will willingly substitute its new Abacha-found statehood to any other arrangement. Under the Confederal System, a weak center is proposed whose power is limited to currency, defence and external affairs. How does this augur well for our economic and social development as a nation? Does the current performance of our Governors indicate any lessons for the future being proposed?

The other touchy issue raised to justify the call for sovereign national conference is mineral resources. Right now God has delivered the mineral producing areas from injustice and oppression by the majority tribes under cover of the Nigerian military. The treatment of the mineral producing areas in the matter of revenue allocation ought to (and is being) revisited by the current Federal Government. Speaking for myself any area from which any natural resource is source should be entitled at least to fifty percent.

The motive of those who suggest that each area should retain the entire 100% of mineral produced by it (and only pay tax to the federal government) is suspect. You will only end up having nations within the nation due to resultant economic imbalance. What has worked elsewhere may not address successfully the Nigerian situation. Note also that every area of Nigeria is favoured in this regard and we may soon shift from petroleum to solid minerals for about 80% of our national revenue in the foreseeable future.

Finally the protagonists of SNC have resuscitated the tribe issue.

Their stance is that our recent experience demonstrates beyond al doubts that we are a nation of incompatible tribes and ethic nations. Are we really incompatible? Is it really a mistake that British Colonialists amalgamated the north and south in 1914? Is there any hope for the minorities under the present arrangement? The diversity of tribes and nationalities in Nigeria is a point of strength rather than a weakness. No convincing evidence has been shown to support the assertion of incompatibility.

We have been interacting socially since the British brought us together prior to independence in 1960. This argument of incompatibility is faulted by the stance of our past leaders most of whom were believers in one Nigeria. The vision of Nnamdi Azikwe, Obafemi Awolowo and Ahmadu Bello was that of one Nigeria, having been premier of western region it was the ambition of Obafemi Awolowo to rule the Nigerian nation. M. K. O Abiola (like Awolowo) before him had a chance to lead to lead the Yoruba nation into secession but he never succumbed to the temptation.

The Ibos have suffered the most injustice (of the three major tribes of Nigeria) yet their current leaders have expressed unshaken confidence in the unity and corporate existence of Nigeria opting to constitutionally redress past injustices. In fact the Igbos of Nigeria will be favorably adjudged by posterity for their massive 1999 nationalistic votes that brought President Olusegun Obasanjo to power despite opposition from his Yoruba tribesmen’s then leadership. The Hausa/Fulani i.e. North have dominated power almost all the time since 1960 Independence from Britain hence, they are not heard to complain. Today a Yoruba man is in power as President; it is doubtful if any of the other tribes can take the current clamor of a few outspoken Yoruba radicals for re-structuring and sovereign national conference serious.

As far as the other tribes and nationalities are concerned the Hausas have passed the baton to the Yorubas (but many forget that the Yorubas paid dearly to have that baton). With publication of the report of the Federal Character Commission on the composition of the officials Obasanjo’s federal government we are still waiting for the SNC protagonists’ own definition of the term “re-structuring”. We have not reached “eldorado”  but it cannot be fairly asserted that the same group that dominated Nigeria under Sanni Abacha and Ibrahim Babangida are still ruling. 

What many SNC protagonists actually desire is the dismemberment of Nigeria i.e. let us meet and agree to part. How practicable is this? What is the guarantee that if the SNC is convened the consensus is going to be part rather than to stay together? If a section wants to part, can it do so against the wishes or consent of the others? Can we by consensus at the SNC achieve what Gideon Orkar sought to achieve by way of coup d’etat i.e. the creation of the Republic of Southern Nigeria.

What evidence (without a referendum) is there of irreconcilable incompatibility among the peoples of Nigeria? Do we cease to be compatible at the mere suggestion of our foreign detractors? The SNC Protagonists must disclose (in any case) their agenda. That agenda must include their own models or proposal as to how the country should be broken or how it should be held together. Right now the only sensible proposals on ground are the Gideon Orkar Proposal and the National Political Conference Report. Nigeria of the new millennium has no room for iconoclasts. It is up to others to submit theirs for consideration rather than continually berate those submitted without proposing alternatives.

The present efforts at Constitutional Amendment (2006) affords opportunity for  a peaceful and amicable route for parts and nationalities that desire separate sovereign existence to pursue that objective. It is unfortunate that some have gone ahead to unilaterally declare secession in utter disregard of the binding provisions of the 1999 Constitution. No responsible Government would suffer indefinitely such illegalities despite warnings. It is sensible for any part so desiring to come to the conference (National Assembly) table to convince the others to allow it to opt out of Nigeria. But such agenda is fraught with difficulties and the attendant challenges may result in frustration and violence and (if the experience of the Ndigbo is anything to go by) any violent secession is likely to suffer the same fate as did Biafra.

In conclusion, the sheer size and diversity of Nigeria and its potential as world power constitutes a worrisome circumstance for the neocolonialist and even intimidates some African countries. Nigeria is today and remains the largest concentration of Blacks in the universe and therefore the hope of our race. We can turn it from the sleeping giant of today to the world power and model God has designed it to be. By our sheer population alone, the entire continent of Africa is likely to suffer adversity and grave economic and refugee problem if any crises erupts that causes violent disintegration.

As late as February 1999 we had the chance to (and in fact some NADECO leaders did) insist on a sovereign National Conference before democratic rule under 1999 Constitution. We opted to forge ahead on present terms which have so far proved workable and wise. There is no guarantee that the SNC is the sure road to more favorable terms of co-existence and there is not much room nor time for profitless experimentation.

The phenomena of ethic and religious violence are not conclusive evidence of incompatibility or constitutional defect. They are the natural incidence of our new found democratic polity and would not go on forever. There is no time to meet and discuss interminably. The urgent need of the day is poverty alleviation, economic development and prevention of military take over. In short good governance is sine qua non to the sustenance of our fledgling democracy. The agitation for SNC is therefore an unnecessary distraction. What is needed is comprehensive constitutional amendment NOT a complete jettisoning of the 1999 Military-Imposed Constitution – a distorted version of the excellent 1979 Constitution. The Presidency and the National Assembly have rightly commenced the amendment Process although rather late. Those great ideas that the SNC protagonists have should be made available to the National Assembly’s Constitutional Amendment Committee. The Presidency has done its part by forwarding the Report of the National Political Reform Conference. Our Freedom of Speech under the 1999 Constitution is wide enough to encompass memoranda that propose the constitutional break-up of Nigeria and it is hoped that those who favor that ideal would not let this opportunity slip by while awaiting the remote possibility of a Sovereign National Conference. 

NB:  Extract of Author’s Book titled “NO TO SOVEREIGN NATIONAL CONFERENCE”. E-Mail the Author for copies.