By Ladipo Adamolekun
“The 1999 Constitution… is neither the product of plebiscite, referendum, nor a national conference. It was bequeathed to us in 1999 by the departing military and promulgated into law by military fiat. The result has been a litany of contradictions, omissions, and inconsistencies…”(bold and italics added). – Former Senate President, David Mark, in Vanguard, November 20th2008. Introduction In my commentary, “JCCR’s Journey to Nowhere”, focused on one of the predecessors of Senator Omo-Agege-led JCCR, I asserted as follows: “The National Assembly’s Joint Committee on Constitution Review (JCCR) appears headed to nowhere… [the Committee] cannot and should not be entrusted with the constitution re-making that Nigeria needs (Vanguard, January 28th, 2009).
Strikingly, two newspaper editorials published in early September 2020 echoed my 2009 assertion that seeking to amend the 1999 Constitution through aJCCR is a journey to nowhere. And they have both advocated a constitution re-making, that is, the preparation and adoption of a new constitution. In its editorial, “Constitution review or a new charter?” (Vanguard, September 14th, 2020), the newspaper answers the question it poses as follows: “… we believe that the time is ripe to shove aside the 1999 Constitution.”
In its own editorial, “Senate’s unprofitable constitution review”, (September 16th2020), Punch newspaper declaims: “Nigeria needs an entirely new constitution.”For the record, the Punch editorial acknowledges a few noteworthy amendments that the National Assembly (NASS) has made: the “Doctrine of Necessity” amendment in 2010 and “modest amendments” to the Electoral Act. ALSO READ: NigeriaAt60: It makes no sense to sell fuel cheaper than Saudi Arabia ― Buhari Argument for a New Constitution Without question, citizens’ proud invocation of their country’s Constitution (also referred to as the Basic Law) is evidence that most of its provisions are widely recognised and accepted.
Normally, the making of a constitution acceptable to the majority of citizens in a country involves extensive public participation and debate and its final version is adopted through a referendum. Three recent good examples in Africa are the Republic of Benin (1990), South Africa (1996), and Kenya (2010). Citizens in each of these three countries swear by their constitution – I’ve witnessed this uplifting phenomenon first-hand in all three countries. In contrast to the experiences of these African countries, Nigerians rarely invoke the 1999 Constitution with pride. Indeed, the incessant controversies and debates over the Constitution is strong evidence of disagreement over many of its provisions within the society. For example, in 2008, the incumbent Senate President asserted that there is “a litany of contradictions, omissions and inconsistencies” in the Constitution (see quote atop this essay).
There is broad agreement among the proponents of a new constitution on a crucial objective: to free our federal system from the shackles of centralism and uniformity imposed during three decades of military rule and enshrined in different parts of the 1999 Constitution. The restructuring required to achieve this objective has been widely debated and its numerous advocates include political groups from across the geo-political zones of the country that recently rejected the current JCCR exercise: the Afenifere, the Ohanaeze Ndigbo, the Pan Niger Delta Forum, the Middle Belt Forum, and the Northern Elders Forum.
Significantly, it is arguable that President Buhari’s widely publicized support for “true federalism” in May 2019 makes him a supporter of restructuring as defined here. (See “Federalism: Seizing Buhari’s olive branch” Punch, editorial, May 23rd 2019and“Buhari’s support for [true] federalism” Guardian, editorial, May 23rd, 2019). The way forward that is advocated in the two editorials cited in the Introduction is more or less a call for a Constituent Assembly (CA) to prepare a new constitution. This would be a logical approach because NASS only has primary responsibility for constitutional amendments. And I would argue that the reality of a country at a crossroads (political tensions, widespread insecurity, economic decline, weak and decaying institutions, and social imbalances) constitutes a strong justification for setting up a constituent Assembly. A New Constitution for “We the People” within Three Months.
The drafting of the new constitution could be completed within three months because the CA will be able to draw on past constitutional documents (especially those of 1954 and 1963) and a good number of existing reports that are focused on revising the 1999 Constitution. The reports comprise those prepared by four JCCRs (Omo-Agege-led JCCR is the fifth) and ad hoc Committees and Conferences set up by the executive branch between 2000 and 2014. The latter category comprises the 2001 “Draft Constitution” produced by an all-party committee, the 2005 National Political Reform Report, and the 2014 National Conference Report. These reports, especially the 2014 National Political Conference Report, layout the critical issues that should be addressed in the desirable new constitution. The issues include redistribution of powers between the federal government and the federating units; re-allocation of resources (with particular attention to fiscal federalism); and re-organisation of the federation’s constituent units.
To ensure nation-wide acceptance of the draft constitution, equality among the six geopolitical zones must dictate the composition of the CA and there must be North/South balance in the appointment of the body’s leadership. If the Constituent Assemblies or their equivalents in Benin, Kenya, and South Africa could produce constitutions that the citizens of their respective countries are proud of, Nigeria’s proposed CA should be able to do the same.
As already mentioned, only the adoption of the final version of the new Constitution through a referendum will ensure that its provisions are accepted by a majority of Nigerians. And the referendum route will unequivocally affirm that the Constitution is truly owned by “We the People”- unlike the false claim made in the Preamble to the 1999 Constitution. Last Word In 1999, Nigeria’s first post-military election cycle was conducted without a constitution! It is possible that this was due to either civilian political actors’ over-anxiety to terminate military rule or their unawareness of the centrality of a constitution to effective governance or a combination of both. Failure to adopt a new constitution for “We the People” before the 2023 election cycle will almost certainly result in poorer governance and a more divided country than what we have experienced to date.
Professor Ladipo Adamolekun writes from Iju, Akure North, Ondo State.