By Otive Igbuzor, PhD
Historically, all over the world, there has been concern about what system of government will be good for people. Various systems have been experimented including autocracy, monarchy and democracy. But from experience, it has been recognized that democracy is the best form of government. Autocracy characterized by one individual making all important decisions and oligarchy which puts the government in the hands of an elite are less desirable when compared to democracy.[i] Democracy is so important in the world today that it has become the driving force of development making many scholars to draw a nexus between democracy and development.[ii] Although different people put emphasis on different issues which they consider to be crucial to democracy, majority of people agree that liberal democracy contains some basic principles which include citizen participation; equality; political tolerance; accountability; transparency; regular, free and fair elections, economic freedom; control of the abuse of power; bill of rights; accepting the result of elections; human rights; multi-party system and the rule of law. The idea of democracy is that majority of citizens take the decisions on who governs and the policies, programmes and projects to be implemented for the benefit of the people. But the challenge especially for the working people is that it has been recognized that liberal democracy is facing a crisis of legitimacy and declining confidence in political leaders and institutions necessitating the need for democratic renewal through increasing citizen participation.[iii] The bedrock of any democracy is the constitution. 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.[iv] The constitution is a collection of norms and standards according to which a country is governed.[v] 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.[vi] Others define a constitution as a set of principles, fundamental rules and practices of government, written and unwritten, which establishes the major organs of government, allocates to them their powers, defines the rights of the citizens and the relations between them and the state. 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. According to Justice Albie Sachs of South Africa, a constitution is the autobiography of a nation.[vii] A constitution has also been described as a contract, which describes the conditions under which the peoples of a nation co-exist.[viii] 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 cannot be overemphasized. As one scholar once 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.
Nigeria has a very rich history of constitution making right from the colonial times. But this was obstructed by military rule such that as at 1999, with 39 years of post-independence Nigeria, the military had ruled for about 30 years. The 1999 Constitution was promulgated as a decree by the departing military regime in 1999. Since then, there has been attempts to reform the constitution in line with the aspirations of Nigerians. Various issues have been raised for review in the constitution. In this paper, we look at the recurrent issues in the review of the 1999 Constitution. But first we give a brief history of the 1999 Constitution and constitution making in Nigeria.
- HISTORY OF THE 1999 CONSTITUTION
In order to understand the context for the emergence of the 1999 Constitution, it is necessary to recount briefly the very rich history of Constitution making in Nigeria. There have at least been ten attempts to make or review the constitution of the country right from the colonial era to 1999. These include the amalgamation constitution of 1914, the Clifford Constitution of 1922, Richards Constitution of 1946, Macpherson constitution of 1951, Lyttleton Constitution of 1954, Independence constitution of 1960, Republican Constitution of 1963, and Presidential Constitutions of 1979, 1989 and 1999. Constitution making in Nigeria has always been done through the old approach. The people do not participate in the making. For instance, the 1914 amalgamation Constitution was made through three different constitutional instruments all of which were made under the authority of the colonial office in London.[ix] Similarly, the 1922 Clifford Constitution and the 1946 Richards Constitution were made with no consultation with the people. It has been documented that the promulgation of the Richards Constitution angered many Nigerians because the Governor did not consult with the people before the constitution was enacted.[x] Meanwhile, the Governor justified the exclusion of Nigerians in the constitution making process by claiming that there was “an absence of any group from which he could obtain African views.”[xi] The opposition to the Richard’s Constitution brought about limited consultation in the making of the 1951 Macpherson, 1954 Lyttleton, 1960 Independence and 1963 republican constitutions which were preceded by national conferences.
The military took over in 1966 barely three years after the making of the Republican Constitution and from that time, the military dominated constitution making in Nigeria until 1999. The 1979, 1989 and 1999 Constitutions were made during military era. The military introduced the idea of appointing a select committee of conservative lawyers and politicians to write constitution for the country. As Ikubaje has noted, the process of military supervised constitution making in Nigeria was closed, unpopular and imposed.[xii] For instance, the 1999 Constitution, which is presently being used in the country, was made by a select committee of 25 members set up by the Gen. Abdulsalami Abubakar regime. The committee headed by Justice Niki Tobi had less than two months to consult with over 120 million people of Nigeria scattered across 774 local government areas. The report of the committee was considered, amended and enacted into law by an armed forces ruling council of 26 military officers, all males. It is absurd that when candidates were contesting for various offices, they had not seen a copy of the constitution. So they contested for positions without knowing the constitutional provisions for those offices. The constitution was released after election only a few days to the formal inauguration of the civilian administration in May, 1999. Meanwhile, the absence of a constitution was not an issue during the electioneering campaigns.
We have argued elsewhere that there are two approaches to the making of constitution in Africa, which we have characterised as the old and new approaches:
In the old approach, 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 old approach inevitably leads to imposed or authoritarian constitution.[xiii] 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 inclusivity, diversity, participation, transparency and openness, autonomy, accountability and legitimacy.[xiv] 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 mechanisms for making the people of the country to claim ownership and authorship of the constitution.[xv]
In Africa, the usual method of making a constitution has been the old approach. Examples include the 1962 Westminster and 1966 “pigeon hole” Constitutions of Uganda; the 1914 Amalgamation, the 1922 Clifford, the 1946 Richard, the 1951 Macpherson, the 1954 Lyttleton, the 1960 independence, the 1963 Republican, the 1979 and 1999 Constitutions of Nigeria; the 1957, 1969 and 1982 constitutions of Ghana; the 1964, 1973 and 1991 Zambian constitution; the 1991 Kenyan Constitution; the 1972 Camerounian Constitution; the 1960 Constitution of Central African Republic, the 1962 Chad Constitution; the 1984 Constitution of Liberia; the 1960 Constitution of Morocco; the 1983 Constitution of Niger; the 1963 Constitution of Senegal; the 1965 Gambian Constitution; the 1966 Malawi Constitution; the 1960 Mali Constitution, the 1963 Togo Constitution; the 1965 Tanzanian Constitution; the 1962 Sierra Leone Constitution e.t.c. There are also concrete examples of countries that have utilized the new approach to produce legitimate and acceptable constitutions in the recent past as in the making of the 1997 Eritrea Constitution, the 1995 Ugandan Constitution and the 1996 South African Constitution.
When the old approach is used in making a constitution, women and the masses of the people are usually excluded and marginalized. The constitutional history of Nigeria shows that this exclusion dates back to the colonial times when women and poor men were not allowed to vote. The Clifford constitution of 1922 restricted the electorate to adult males in Calabar and Lagos who have been resident in the city for at least one year and had a gross annual income of 100.00 Pounds. Men who have a gross annual income of less than 100 Pounds sterling were not eligible to vote. The Richard constitution of 1946 only reduced the property qualification to 50.00 Pounds. The Macpherson constitution removed property qualification but still restricted the electorate to only adult males who pay their taxes. In fact, it was not until 1979 before the right to vote was extended to all Nigerian women. The democratization of suffrage is shown in the table below.
Table 1: Democratisation of suffrage in Nigeria
|1922||Clifford||Adult Males with annual income of 100 Pounds|
|1946||Richards||Adult Males with annual income of 50 Pounds|
|1951||Macpherson||Adult Males who paid their taxes|
|1954||Lyttleton||Adult Males+ Females in East & West|
|1960||Independence||Adult Males+ Females in East & West|
|1963||Republican||Adult Males+ Females in East & West|
|1979||Presidential||Adult Males & Females|
The 1999 constitution is therefore a product of this history. The Constitution continues the marginalisation and discrimination against women and ordinary people. For instance, the language of the constitution is in masculine gender as if there are no women in Nigeria. The constitution not only continues the marginalisation of women but also actively discriminates against women particularly on citizenship. When the constitution wants to discriminate against women, it will state clearly that the section in question is applicable to men or women. The end result is that when the constitution came into force in the fourth republic, women were marginalized as can be seen from the table below.
Table 2: Female Representation in Governance in the Fourth Republic
|ORGAN||TOTAL NO||NO OF WOMEN||% WOMEN|
|Fed. Executive Council||49||6||12.2|
|House of Reps||360||12||3.3|
|State Deputy Governors||36||1||2.8|
|State Houses of Assembly||995||12||1.2|
|Local Government Chairmen||774||9||1.2|
|Local Government Councilors||8,800||143||1.6|
Source: Alemika, E.E.O. and Agugua, a. O. (2001), Gender Relations and Discrimination in Nigeria Police Force. Lagos, Centre for Law Enforcement Education (CLEEN)
The marginalization of women has continued till date such that the percent of women in Parliament is less than 6 percent, one of the lowest in the world. The table below shows a summary of women’s representation in elective positions since 1999:
|S/N||Position||No of Available Seats||No of Women in 1999||No of Women in 2003||No of Women in 2007||No of Women in 2011||No of women in 2015|
|3||House of Reps||360||12||23||26||26||19|
|6||36 States Houses of Assembly||990||12||38||54||62||NA|
Source: Lance-Onyeiwu, Maureen (2011), Except from UN Women’s Preliminary Analysis of the Results of the 2011 General Elections in Nigeria
During the 2007 elections, women constituted about 11% of all candidates with only one woman contesting for the office of the President; 33.9% for governorship positions; 13.5% for Senate, 15.6% for House of Representatives, and 15.8% for Houses of Assembly. At the end of the elections, women occupied only about 7.5 percent of key leadership positions in Nigeria.
Interestingly, when the Yar’Adua administration came into office, it promised to give 30 percent of political appointment to women (less than the 35 percent in the National Gender Policy). But an assessment conducted by ActionAid after one year indicated that women appointment was only 11 percent. Official records released by INEC shows that a total of 809 women emerged as candidates for the 2011 elections on the platforms of various political parties. This represents a 17% increase over 692 women who emerged as candidates during the 2007 elections.[xvii] But when the results was released, women’s representation at national level regressed slightly from 7.5% in 2007 to 7.1% in 2011. In the 2015 elections, the number further decreased to 7 in Senate (6.4 percent) and 19 in House of Representatives (5.2 percent). This is very poor compared to other countries in Africa: Rwanda -63.5 percent for lower house and 38.5 percent for Upper house; Senegal (42.7 percent); South Africa- 41.9 percent for lower house and 35.2 percent for Upper house; Burundi- 36.4 percent.[xviii][xix] The number is currently lower than the 2015 figures.
- ISSUES IN THE 1999 CONSTITUTION ON RETURN TO CIVIL RULE IN 1999
On return to civil rule in 1999, there was consensus in Nigeria that the 1999 Constitution was an imposition by the military and needed a complete overhaul and reform. The Citizens Forum for Constitutional Reform (C.F.C.R.), a coalition of civil society organisations committed to a process led and participatory approach to constitutional reform in Nigeria identified ten issues for review in the 1999 Constitution.[xx] These issues include:
- PROCESS OF MAKING THE CONSTITUTION: – The history of constitution making in Nigeria shows that some wise men (rarely women) are appointed to write a constitution for the country. The Citizens Forum is of the view that this is not a proper way to make a constitution. The Forum argues that constitution making should not be a secret affair dominated and directed by political elites especially conservative lawyers and politicians. The Forum argues that the constitution review process in Nigeria should be guided by the principles of inclusively, Diversity, Participation, Transparency and oppress, Autonomy, Accountability and Legitimacy
- Inclusivity – 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 – 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.
- Participation – 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. Those leading the process must ensure that they put mechanisms in place such as accepting oral memoranda; organising debate and discussion in local languages and aggressive publicity to make sure 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 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. 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 – The process must be transparent and open and must be seen by all to be so. There should be no “no go areas” and “no hidden agenda”. 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.
- 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. There should be an act of the National Assembly establishing the body. 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.
- Accountability – 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.
- Legitimacy – Finally, 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.
- THE 1999 CONSTITUTION AND WOMEN – Constitution making in Nigeria has largely excluded women. The provisional ruling council that promulgated the 1999 constitution was made up of 26 Military officers, all males. The language of the constitution is in masculine gender.
People are demanding that:
- The language of the constitution should be gender neutral
- The right of women to pre-natal and post natal care should he enshrined.
- Sections 25-23 should be amended so that any man (foreigner) who is or has been married to a Nigerian woman will be eligible for citizenship by registration just as any woman who is or has been married to a Nigeria man is eligible for citizenship by registration.
- At least 30 percent of all elective and appointive positions should be reserved for women.
- There should be a clear provision in the constitution affirming gender equality and non-discrimination based on sex.
- There should be a provision prohibiting any culture, custom or tradition, which is against human dignity.
- THE LANGUAGE OF THE 1999 CONSTITUTION – The 1999 constitution is written in a language that makes it difficult for anyone who is not a lawyer to understand. People are demanding that the language of the new constitution should be in a simple language that everyone will understand.
- INDEPENDENT COMMISSIONS – The 1999 constitution makes provision for Federal Executive bodies like Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, Police Service Commission etc.
These bodies are dependent on the Executive for appointment, direction and funding.
People are demanding that:
- There is the need for constitutionally entrenched independent commissions independent of the executive.
- The funding of such commissions should be from the consolidated fund.
- The appointment of the members should be subjected to an approval mechanism that is open and transparent.
- The independent commissions should include National Human Rights, Gender and Social Justice Commission, Independent National Electoral Commission, Public Complaints Commission / Office of the Public Protector/Ombudsman, Civic Education and Social Mobilization Commission, Code of Conduct, Independent Broadcasting Commission and Anti-corruption and Public Accountability Commission.
- CITIZENSHIP AND RESIDENCY RIGHTS – The 1979 constitution introduced the concept of indigeneity. According to the 1979 constitution, indigeneity of a state is conferred on a person whose parents or grandparents was a member of a community indigenous to a particular state. Section 147 of the 1999 constitution provides that the president shall appoint at least one Minister from each state who shall be an indigene of such a state. (The 1999 constitution does not define who an indigene is). People have argued that the elite manipulate the concept of indigeneity for selfish ends. There has been a strong argument for establishing citizenship based on residency. There have been various suggestions on how this issue should be addressed. The suggestions include:
- Any person should be deemed as an indigene of a place if he/she has lived in such a place for 10 years or if the spouse of the person is so qualified.
- Any person who is born and spent his or her first five years in a community should be deemed to be an indigene of that community.
- The concept of indigeneity should be removed completely from the constitution.
- FEDERALISM – It has been argued that the 1999 constitution violates most of the principles and minimum standards of any Federal system. These standards include the non-subordination of one level of government to the other; the direct operation of all levels of government upon the citizens and the independence of the judiciary and relative fiscal autonomy. There is a consensus that there is over concentration of powers at the Federal level.
People are demanding that:
- The functions of local governments and states should be expanded.
- SOCIAL AND ECONOMIC RIGHTS:- The 1999 constitution provides for social and economic rights in sections 13 – 24 (chapter two). These include the right to engage in economic activities, maximum welfare and happiness, suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, unemployment and sick benefits, welfare of the disabled, adequate medical and health facilities and free education at all levels including free adult literacy programme. But the provisions are not justiciable This means that one cannot go to the court to claim damages for breach of the provisions. It has been argued that the 1999 constitution is not a product of the popular will of the people and the provisions on social and economic rights do not meet the aspirations of the people.
People are demanding that:
- The provisions of chapter two should be made justiciable.
- Government has a responsibility to take steps to utilize to the maximum of its available resources to achieve progressively the full realization of social and economic rights.
- There are three layers of obligations in matters of social and economic rights: Obligations to respect, protect and fulfil. The obligation to respect requires states to refrain from interfering with social and economic rights e.g. refrain from forced eviction. The obligation to protect requires states to prevent violations by third parties e.g. ensure that private employers comply with labour standards. The obligation to fulfil requires states to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights.
- Provision for setting up an independent commission for Economic and Social Justice to monitor the implementation of social and economic rights.
- Additional social and economic rights should be entrenched in the constitution and made justiciable . These include the right of spouse to the estate of a diseased partner, the right to housing, the right of equality of men and women, the right to work, the right to equal educational opportunities and facilities, the right to culture, language, tradition and religion, the right not to be married off at an early age, the right of mothers to pre-natal, peri-natal to postnatal care, the right of the child, the right of the disabled and the right of minorities.
- POLITICAL PARTIES AND FREEDOM OF ASSOCIATION
It has been argued that various provisions of the 1999 constitution infringe on the right to Freedom of Association. Various commentators have pointed out that the powers conferred on the Independent National Electoral Commission (INEC) by section 40 of the constitution completely derogates from the right to form or belong to any political party of one’s choice. Although section 40 confers the right to belong to any Political party, it gives the proviso that INEC has to give recognition. The stringent conditions required for registration effectively disempowers a lot of people who may find it inconvenient or even embarrassing to belong to any of the registered parties.
People are demanding that:
- The registration of political parties by INEC should be for administrative purposes only. Any association that applies for registration as a political party should send the application through any of the commission’s offices accompanied by a copy of the party’s constitution and manifestoes. There should be no payment of registration fees and candidates for election should not be made to pay any deposit.
- The Headquarters of political parties need not be at Abuja and neither do they need to have branches in 2/3 of the States of the Federation.
- All provisions that prohibit the confinement of activities of a political party to a geographical area should be deleted. In the same vein, the requirement that the members of the executive committee or other governing body of the political party should reflect the federal character of Nigeria should be amended to reflect such diversities as gender, ethnicity and religion. Political parties should be required to ensure that at least 30 percent of the candidates to be nominated are women. Furthermore, parties should reflect the diversities in the areas where they operate.
- Section 225 which provides that any fund sent to a political party from outside Nigeria should be paid over or transferred to INEC should be amended to provide that such amount should be disclosed to INEC and made public.
- The Commission should ascertain all claims of the party and candidates at least 180 days before the date of the election. This is to allow sufficient time for the political parties and candidates to canvass their positions among the electorate
- DERIVATION PRINCIPLES AND REVENUE ALLOCATION
It has been noted that the 1999 Constitution violates the principles of Federalism as applied to revenue allocation. The mature federal states for instance allow states where there are resources to control their resources. For example in the USA, the state of Alaska owns all the lands in the State currently producing oil and collects over $1.1 billion annually in royalties on production in its public land. In Canada, the provinces (states and regions) are entitled to extract a royalty payment in respect of each unit of production. In Australia, States collect royalties but not taxes.
People are demanding that:
- The federating units should have total control and ownership of the resources in their area. They should however pay taxes to the Federal government.
- At all levels of government, mechanisms must be put in place to ensure public control and accountability.
- There should be an equalization fund, which should be distributed to all federating units on the basis of balanced development, basic need and minimum standard.
- Population and landmass should be struck out as a basis of distribution of the equalization fund.
- Section 44 section 1 subsection 3 of the 1999 constitution which provides that “the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the exclusive economic zone of Nigeria shall vest in the government of the Federation…..” should be amended so that ownership and control of all resources will be vested in the federating units.
- Section 162 should be amended so that the federating units will pay taxes to the federal government from the resources available in those areas. The derivation principle will no longer apply since the units will have total control and ownership of the resources.
- ACCESS TO JUSTICE AND THE RULE OF LAW
It is well established that countries which have well-entrenched and flourishing democracies have judicial systems that are free, strong, well-motivated and unbiased. It is also well known that access to justice is one of the most serious problems confronting citizens of Nigeria. Meanwhile, the obstacles or impediments to a citizen’s access to justice in Nigeria include ignorance of the populace, poverty, corruption and bad or non-existent infrastructure for the administration of justice. It has been argued that provisions in the 1999 constitution concerning the composition and powers of the National Judicial Council violates the principles of federalism, fair representation, equity and democracy. For instance, of the 21 members of the National Judicial Council, 17 of them are appointed by the Chief Justice of Nigeria. Meanwhile, the council controls the appointment, removal from office, discipline and control of all monies both in the Federal and State judiciaries.
People are demanding that :
- Sections 20-22 of the third schedule concerning the composition and powers of the national judicial council should be amended. These sections give the composition and powers of the National Judicial Council. The composition is too restrictive and the powers too wide and inconsistent with the principles of federalism. The powers to appoint and discipline judges and collect and distribute funds should be deleted. Rather, it should only perform broad policy formulation roles. It should be restructured to function as a parliament made up of both Federal and State judicial officers on the basis of equity.
- Sections 231, 238, 250, 256, 260 and 266 should be amended so that the function of recommending judicial officers for appointment will be performed by the Federal Judicial Service Commission or State Judicial Service Commission as the case may be and not the National Judicial Council.
- Section 251 of the constitution dealing with jurisdiction of the Federal High court should be amended. Sections 251, subsections 1 (d), (e), (f), (g), (j), (n), (o), (p), (q), r), (s) and (x) should be deleted. These sections contain items such as operation of companies, bankruptcy, and weight and measures that State High Courts should have co-ordinate jurisdictions. Moreover, the Federal High courts are not well spread and will deny access to justice when it excludes the jurisdiction of state High Courts in many areas.
- Section 291 should be amended so that any judicial officer appointed to the courts under the constitution shall cease to hold office when he or she attains that age of seventy years.
- The judiciary should draw their funds from the consolidated revenue fund. The funds should be managed directly by the judiciary. The approval of funds for the Federal Judiciary should be done by the National Assembly while that for the State Judiciary should be done by the State Houses of Assembly. A mechanism should be put in place to ensure that disbursement is not dependent on the whims and caprices of the executive.
- The judiciary should prepare its budget, defend it and the fund released directly to the judiciary. The executive shall release all funds to the judiciary as approved by the legislature.
- The Chief Justice of Nigeria and State Chief Judges should be elected by their peers for a single term of 5 years without the possibility of renewal of tenure.
- REVIEW OF THE 1999 CONSTITUTION (1999-2019)
As noted above, the 1999 Constitution was enacted by the military without participation of the Nigerian people. Both conservatives and progressives were unanimous that the constitution tells a lie against itself when it claimed in its preamble that “we the people of the Federal Republic of Nigeria….do hereby make, enact and give to ourselves the following constitution.” Although the 1999 Constitution is legal, it lacks legitimacy because it was not made by the people. This is why since return to civil rule in 1999, there has been attempts to alter the 1999 Constitution. At the beginning, there was attempt at comprehensive reform of the constitution from 1999 to 2011 but all attempts were unsuccessful until a piecemeal approach was adopted in 2011. Since then, there has been first, second, third and fourth alterations to the 1999 Constitution. Some of the major areas that have been amended include hand over of full powers to the Vice- President in the absence of the President; upgrading the status of the National Industrial Court to a court of superior record and guaranteeing the financial autonomy of the National Assembly and State Assemblies. At the 8th Assembly, the constitutional amendment bills that were assented to and signed into law include financial autonomy for state legislatures (which provided for funding of State Houses of Assembly directly from the consolidated Revenue Fund of the State); several provisions relating to elections (including to give the Independent National Electoral Commission (INEC) sufficient time to conduct run-off elections within 21 days (instead of 7 days); restriction on the tenure of the President or Governor to a single term if he/she completed the tenure of another President or Governor; and reduction of the age for certain offices (Not too Young to run Bill).
It is clear that some of the issues raised on return to civil rule has been addressed. The constitution review process is now more participatory with receipt of memoranda from the public and public hearing to collate the views of citizens. Despite the success of the four alterations, there are still issues begging for attention in the 1999 Constitution. The 9th National Assembly has therefore identified constitutional review as one of the issues to dealt with.
- RECURRENT ISSUES IN THE REVIEW OF THE 1999 CONSTITION
The 9th National Assembly legislative agenda had constitutional review as one of the key issues to drive reform in the country. There is a Constitution review Committee in the Senate headed by the Deputy President of the Senate, HE Sen. Ovie Omo-Agege and in the House of Representatives headed by the Deputy Speaker, Rt. Hon. Ahmed Idris Wase.
At the Senate, the Committee brainstormed and reflected on past review processes and identified thirteen issues in its call for memoranda from the public.
The issues are:
- Gender Equality for women and girls
- The Federal Structure and Power Devolution
- Local Government/Local Government Autonomy
- Public Revenue, Fiscal Federation and Revenue Allocation
- Nigerian Police and Nigerian Security Architecture
- Comprehensive Judicial Reforms
- Electoral Reforms to strengthen INEC to deliver transparently credible free and fair elections
- Socio-economic and cultural rights as contained in Chapter 2 of the constitution
- Strengthening the Independence of oversight institutions and agencies created by the constitution or pursuant to an act of the National Assembly
- Residency and Indigene Provisions:
- The National Assembly
- State Creation
On receiving the memoranda, the Secretariat of the Constitution Review process led by the Clerk, the Office of the Deputy President of the Senate and Consultants reviewed the memoranda and are now drafting the bills for consideration by the distinguished Senators. The distinguished Senators have held several meetings and conferences to deliberate on the process and submissions and in preparation for the Zonal Public hearings slated for 26th and 27th May, 2021, the issues have increased to seventeen based on analysis of memoranda received from the public: The issues are:
- Gender Equity/Increased participation of Women and Vulnerable groups in governance: As noted above, constitutions in Nigeria have historically marginalised and discriminated against women. Since return to civil rule in 1999, most of the attempts are review of the constitution have included proposals to amend the 1999 constitution to become more favourable to women. But it has never been possible to muster the number to pass the proposals. In the current review process, people are still demanding that:
- The language of the constitution should be in neutral gender and sections 26 (2) should be altered by substituting for the word “woman”the word person.
- Section 42 of the constitution should be altered by inserting after the word sex, the words age, disability and health status.
- Providing for affirmative action to increase women participation in appointive and elective positions.
- The Federal Structure in governance and Power Devolution: The issue of federal structure in governance and devolution of power has dominated political discourse in Nigeria in the last few years. There is consensus that there is over concentration of powers at the centre. There has been calls for restructuring of the country. People are demanding that:
- Some items be removed from the exclusive legislative list to concurrent list.
- Local Government Administration/Local Government autonomy: The history of local government in Nigeria shows that there are problems of governance issues. Over the years, efforts have been made to reform the local government system but the problems persist ranging from corruption, inefficiency, poor management, relationship with state and federal governments and poor service delivery. In the current review process, people are demanding that:
- If elections are not conducted, such local government should not be recognised and should not access fund from the federation account or state government.
- Mechanism should be put in place so that Local Government will be involved in economic planning and will have and implement their own budgets.
- The names of some local government councils be changed and the boundaries correctly defined.
- Public Revenue, Fiscal Federalism and Revenue Allocation: The issue of the appropriate form of federal arrangement for Nigeria has dominated the political landscape since the colonial times. Although there seems to be a consensus that federalism is the best sort of government for Nigeria, the appropriate form that it should take, particularly with respect to the distribution of resources in the country, has been problematic. In the current exercise, people are demanding:
- An increase in the percentage of derivation formula.
- Giving of powers to the Revenue Mobilisation, Allocation and Fiscal Commission to enforce compliance on remittance of accruals into and disbursement of revenue from the Federation account.
- Constitutional Provision for the Establishment of State Police: It is well established that most federal systems across the world have multi-police formations. But Nigerian has maintained only one federal police force, the Nigeria Police Force (NPF). Meanwhile, the NPF has not been effective in policing Nigeria. Several people have argued that as a federal system, the country ought to operate a multi-police formation to be effective. But there are fears from the operation of Native Authority Police in the first Republic and perception about the conduct of some Governors that State Police will be abused. In the current exercise, people are demanding:
- That the constitution be altered to provide for the establishment of State Police with a State Police Service Commission that is structured to prevent abuse.
- Judicial Reform – Adjudication of election and pre-election matters and other justice delivery concerns: Over the years, there is increasing politicisation of the society in Nigeria. Most issues are now seen from the prism of politics including security. Historically, there has been two dominant political trends since independence broadly classified as conservatives and progressives. In the first republic, it was between the NCNC/NNA and AG/UPGA. In the second republic, it was between NPN and UPN/PRP. The politicisation of the Nigerian society increased with the intense struggle for power between the two major political parties, the PDP and APC during the 2015 elections. This was intensified during the 2019 elections. Meanwhile, over the years, there is increasing participation of the judiciary on determining who won elections leading to what scholars have termed judicialization of politics.[xxi] Over the years, there has been series of judicial reform to address the issue. In the current exercise, people are demanding that:
- The constitution should be altered to define pre-election matters and make provisions for final courts to give decisions and state reasons later.
- The constitution should be altered to provide for uniform retirement age for judicial officers
- The constitution should be altered to enable a Judge of the High Court who is appointed to the Court of Appeal to sit and conclude the part-heard criminal matters pending before him or her.
- The constitution should be altered to allow hearing and determination of the proceedings of a court or any tribunal through a remote, virtual, on-line or any media platform or technological innovation.
- The constitution should be altered to strengthen the judiciary for speedy dispensation of justice through changes in the operation of the Courts, National Judicial Council, Federal Judicial Service Commission and State Judicial Service Commission.
- Electoral Reforms that will make INEC deliver transparent, credible, free and fair elections, Political parties, Independent candidature and election management: In the first four alterations of the constitution, great attention was paid to electoral issues. But the challenges of credible, free and fair elections remain. In the current exercise, people are demanding:
- Provisions relating to political parties should be strengthened to enhance operations and adherence to campaign financing
- Provisions to preclude the High Court of a State and Federal High Court from entertaining disputes emanating from congresses, conventions and other meetings convened by political parties for the purpose of electing members of its executive or other governing boards.
- Specific seats should be reserved for women in the National and State House of Assembly
- There should be gender equity in the composition of the Federal Character Commission
- There should be establishment of Political Parties Registration and Regulation Commission
- Socio-economic rights as contained in Chapter II of the Constitution: Chapter two of the Constitution contains socio-economic rights which are not justiceable. In the current exercise, people are demanding that:
- The provisions of Chapter two of the constitution should be made justiceable
- The President should attend a joint session of the National Assembly to deliver an address in respect of the state of the Nation.
- Residency and indigeneship: The challenge of indigeneity has brough about a lot of communal crisis in Nigeria. Millions of Nigerians who are resident in many places other than where they claim indigeneity or where they are accepted as indigenes and are subjected to all kinds of exclusions and deprivations. This has led to several communal violence and ethno-religious conflicts such as the Hausa and Kataf in Zango Kataf in Southern Kaduna; Jukun/Tiv conflict in Wukari; Chamba and Kuteb Conflict in Taraba; Ife/Modakeke crisis; Umuleri/Aguleri conflict and the Plateau crisis. In the current exercise, people are demanding:
- That the constitution be altered to define indigeneship and that a person who is born in a place or has consistent lived in that place for ten years or is married for at least five years to an indigene of a place should be considered an indigene and accorded all the rights and privileges.
- Immunity – Removal of immunity in prima facie criminal cases: The issue of immunity for the President, Vice-President, Governors and Deputy Governors have dominated discourse since return to civil rule in 1999. People are demanding that:
- Immunity should be removed from criminal and corruption issues.
- Time-line for Assent of Bills and Passage of Appropriation Bill: In the past, passage of bills was a challenge and delayed in many years. This was particularly problematique in the eighth assembly under the leadership of Se. Bukola Saraki. People are demanding that:
- There should be reduction of the period within which the President or the Governor of a state may authorise the withdrawal of monies from the Consolidated Revenue Fund in the absence of an Appropriation Act from six months to three months.
- Specify the period within which the president or the Governor shall present the Appriopriation bill before the National Assembly or House of Assembly.
- States and local government creation: Agitation for creation of states have been persistent for a very long time. However, creation of states have only been successful during military regimes. In the current exercise, people are demanding for creation of more states.
- Strengthening the independence of institutions like the office of the Accountant General of the Federation, Auditor General of the Federation and Office of the Attorney General of the Federation: It has been recognised that independent institutions constitute a strong pillar for promoting accountability in modern society necessitating the strengthening of independent institutions. In the current exercise, people are demanding that:
- The office of the Auditor General should be strengthened to audit all public accounts and the accounts of corporation and statutory bodies.
- The Office of the Accountant General of the Federal Government should be separated from the Accountant General of the Federation.
- The office of the Attorney General of the Federation and of the State should be separated from the office of the Minister of, or Commissioner for Justice of the State in order to make the offices of the Attorneys General independent and insulated from partisanship.
- C.T. Administration: Since its creation, the status of FCT in the governance of the country has been subject of debate. In the current exercise, people are demanding that:
- The constitution should be amended to provide for at least a Minister from the FCT, Abuja to ensure FCT representation in the Federal Executive Council.
- To provide for a Mayor for the FCT
- The Legislature and Legislative Bureaucracy: People are demanding that:
- There should be a clear procedure for overriding Presidential veto
- Constitutional Roles for Traditional Rulers: The role that traditional rulers play in a modern democracy has been a controversial one. In the current exercise, people are demanding that:
- The constitution should be altered to provide for the establishment of the Council of Traditional Rulers to advice government and be part of the Security Council at the Federal and State levels.
- Any other issues that promote the unity and good governance of the Nigerian nation: There are many other demands that are not under the headings above. They include:
- Demands to alter the constitution to provide for independent candidature in contesting elective positions at Federal, State and local government levels.
- Demands to provide for the right to food and food security in Nigeria
- Demand to include parading of persons arrested by police or any law enforcement agency as part of definition of torture, inhuman and degrading treatment.
- Demand for a clear provision for a specific date for convening the first session and inauguration of elected members of the national and state Houses of Assembly and the quorum at inaugural sitting.
- Demand for a clear provision for the establishment and core functions of the Nigeria Security and Civil Defence Corps
- Demand for clear timelines for the submission of Ministerial and Commissioners nominee
- IMPERATIVE OF ENGAGEMENT IN THE PRESENT PROCESS
Since return to civil rule in Nigeria, the context in Nigeria has deteriorated. The political context has been characterized by increasing animosity and acrimonious verbal exchanges between the two leading political parties, the All-Progressives Congress (APC) and Peoples Democratic Party (PDP). The relationship between the Governments in the country and the youth has deteriorated culminating in the #ENDSARS protest. Several ethnic and religious groups and organisations have engaged each other and the government in unfriendly exchanges. The security context is precarious with challenges of terrorism, armed banditry, kidnapping and farmer-herdsmen crisis. The calls for restructuring have been strident. There are even calls for seceon and breakup of the country. The economic context has also deteriorated. The number of poor people in the country has continued to increase. Nigeria has now overtaken China and India as the host of the largest number of people living in extreme poverty in the world. The country has experienced two economic recessions in the last six years. The debt profile has risen to disturbing levels. The social context has not fared better. Despite the focus of the Buhari regime on the fight against corruption with humongous recovery of loot, the corruption perception index has remained very high. Although the technological context has improved with more access to mobile phones and the social media, it has also increased it’s use for misinformation, propaganda and criminal activities.
The current context reinforces the need for an elaborate review of the 1999 Constitution and Nigerians must seize the current policy and advocacy moment to effect fundamental changes to the 1999 Constitution. Luckily, there are enabling factors that can make this happen. First and foremost, the leadership of the Constitution review process in the 9th Assembly are committed to making a difference in the process. They have demonstrated commitment in words, action and processes since the commencement of the review process. Secondly, the process has ensured that the voices of the citizens are captured. Memoranda was received from the public which are now being drafted into constitution amendment bills. Zonal Public hearing is being organized in 12 locations across the country, two in each of the six geo-political zones. A national public hearing will be organized in June, 2021. This is the time that citizens and their organisations should ramp up their advocacy and campaigns both to the leadership of the constitution review process and individual legislators to ensure that the aspirations of citizens are translated into concrete constitutional amendments.
The constitution is the most important document in the governance of any modern state. Nigeria has a very rich history of constitution making. The current 1999 constition has been subjected to several criticism. The opportunity created by the 9th Assembly Constitutional alteration process is an opportune one for constitutional re-engineering to address many of the challenges facing the country. It will be useful for Nigeria to seize this opportunity.
[i] Janda, K, Berry, J. M. and Goldman, J (1999), The Challenge of Democracy
[ii] Igbuzor, O. (2005), Perspectives on Democracy and Development. Lagos, Joe-Tolalu & Associates.
[iii] Bentley, T. (2005), Everyday Democracy: Why we get the Politicians we deserve. London, Demos.
[iv] Okoli, F. E. and Okoli, F. C., Foundations of Government and Politics (Onitsha, Africana-FEP Publishers, 1990)
[v] Anifowose, R., “Constitution and Constitutionalism” in Anifowose, R and Enemuo, F. (Eds), Elements of Politics (Lagos, Malthouse Limited, 1999)
[vi] Bagehot, W., The English Constitution: Origin of Modern Constitutionalism (London, Harper and Row, 1949)
[vii] International Institute for Democracy and Electoral Assistance (IIDEA), Democracy in Nigeria: Continuing Dialogues ( Stolkhom, IIDEA, 2000)
[viii] IIDEA, Ibid
[ix] Momoh, A (2000), “The History and Politics of Constitution Making in Nigeria(1922-1999) in The Path to People’s Constitution. Lagos, Committee for the Defence of Human Rights
[x] Igbuzor, O. (2000), A Critique of Constitution Making and Review Process in Nigeria. Lagos, Citizens Forum for Constitutional Reform (CFCR) Monograph Series No. 1
[xi] Coleman, J. S. (1958), Nigeria: Background to Nationalism. Berkely & Los Angeles, University of California Press.
[xii] Ikubaje, J. G. (2002), Military Regimes and Constitution: The Military and Constitution Making in Nigeria (1979-1999)” in The Constitutional Forum. Vol. 1, No. 1
[xiii] Ihonvbere, J. O. (2000), Towards a New Constitutionalism in Africa. London, Centre for Democracy and Development (CDD) Occasional Paper Series No. 4
[xiv] Citizens Forum for Constitutional Reform (2001), The Position of the Citizens Forum for Constitutional Reform (CFCR) on the Review of the 1999 Constitution of the Federal Republic of Nigeria.
[xv] Igbuzor, O (2002) “Making Democracy Work in Nigeria: The Civil Society and Constitutional Reform” in Bujra, A. and Adejumobi, S. (Eds), Breaking Barriers, Creating New hopes: Democracy, Civil Society and Good Governance in Africa. Trenton, NJ, USA, Africa World Press Inc.
[xvi] At the beginning of the republic there was one female speaker who had to resign.
[xvii] Lance- Onyeiwu, M (2011)
[xviii] Guardian 7th March, 2016
[xix] Igbuzor, O (2005), Issues in the Review of the 1999 Constitution in Perspectives on Democracy and Development.
[xxi] Ugochukwu, B. E. (2011), The Pathology of Judicialization: Politics, Corruption and the Courts in Nigeria in The Law and Development Review. Vol 4, No. 3, September 2011.