By Dr. Otive Igbuzor

Introduction: The Constitution is the most important document in the governance of any country. It contains the rules and regulations both legal and non-legal, which ordain, order, regulate and sustain the government of a given country.[i] It is the supreme law in any country and any law inconsistent with its provisions is null and void and of no effect. It formulates the legal framework for the priorities and distribution of resources to which the people can have access.

THE MAKING OF A PEOPLES CONSTITUTION

It is important that citizens participate in the making and review of constitution. Indeed, modern society requires the making of a peoples’ constitution. Unfortunately, since the amalgamation of the Northern and Southern protectorates into the territory known as Nigeria in 1914, no constitution has been produced through a participatory process. Constitution making should be participatory and should be guided by the principles of inclusivity,  diversity, participation, transparency and openness, 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 review process 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.  Participatory approach to constitution making is probably one of the best panaceas to instability, public cynicism, and alienation from government, coups and countercoups.  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.

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.

PREVIOUS ATTEMPTS TO REVIEW CONSTITUTION IN NIGERIA

There have been at least ten attempts to make or amend a constitution for Nigeria. This include the 1914 Constitution, the 1922 Clifford Constitution, the 1946 Richards Constitution, the 1951 Macpherson Constitution, the 1954 Lyttleton Constitution, the 1960 Independence Constitution, the 1963 Republican Constitution, the 1979 Constitution, the 1989 Constitution and the 1999 Constitution.

As we have argued elsewhere, three approaches to constitution making in Nigeria can be delineated.[ii] First, the approach by the colonialists to draft and impose constitutions on the people of Nigeria. By this approach, the constitution is made in London and taken to Nigeria for implementation. This was how the 1914 amalgamation, 1922 Clifford and 1946 Richards’s constitutions were made. The people did not participate at all in the making of these constitutions.

A slight variation of this approach is limited consultation of the people as witnessed in the making of the 1951 and 1954 constitutions. However, despite this consultation, the people did not have any say in the drafting or approval of the constitution. The second approach is the use of constitutional conferences. A constitutional conference is called where all the contentious issues are agreed upon after which a constitution is enacted. This was the method used in making the 1954, 1960 and 1963 constitutions.

The third approach is the setting up of constitution Drafting Committees to draft a constitution for the country, which is essentially a creation of the military. Therefore, one can say that the experience of constitution making in Nigeria particularly during the colonial and military rule do not tally with the theoretical notions of a constitution as a political consensus, covenant or contract.

On return to civil rule in 1999, a decree was promulgated as the 1999 Constitution. There was consensus then that the constitution was illegitimate and an imposition by the military. This is why constitutional review has been on the agenda from 1999 till date.

Initially, several civil society organisations advocated for comprehensive reform of the constitution in a participatory process that will lead to the production of a peoples’ constitution. Unfortunately, the political class opted for a piecemeal approach to review of the constitution.

Our experience of advocacy in the last eighteen years indicates that the political elite are either unable or unwilling to champion fundamental reform of the laws of the land.

CONSTITUTION REVIEW AND ETHNIC/RELIGIOUS CRISIS

Meanwhile, as we all know, Nigeria has been experiencing ethnic and religious crisis. There has been argument as to whether constitutional provisions can prevent ethnic or religious conflicts. There are a lot of lessons that can be learnt from Nigeria’s experience in managing ethnic and religious diversity.

First, constitutional engineering after the failure of the first republic in Nigeria has prevented the emergence of religious parties in Nigeria. Although some of the political parties have more following in certain regions of the country( Unity Party of Nigeria(UPN) and Alliance for Democracy (AD) in South Western Nigeria, Peoples’ Redemption Party (PRP) in Northern Nigeria, All Progressive Grand Alliance (APGA) in eastern Nigeria, the outlook, programmes and mobilization of all the parities are national.

Second, the Nigerian experience has shown that constitutional provisions alone cannot prevent ethnic and religious conflicts. Furthermore, the constitutional prohibition of State religion has not prevented Governments (both Federal and State) from giving preferential treatment to certain religions. It has also not stopped some State Governments in Northern Nigeria from introducing the Sharia legal system.

In addition, the experience of constitution making in Nigeria shows that the people have never really participated in the making of a constitution for the country. Since the people did not participate in the making of the constitution, they cannot relate to the final product as their own. They are therefore alienated from the political process and the end result is lack of respect for the rule of law, corruption and conflict. As we have consistently argued,  religion is used by the elite as a tool to manipulate to have access to power. There is therefore a big difference between constitutional provisions and reality.

The challenge is to ensure the creation of institutions and mechanisms that will anticipate, forecast and try to prevent these conflicts and mobilize the people to ensure good governance, accountability and transparency while ensuring that there are institutions of horizontal accountability that are independent.

CONSTITUTION REVIEW AND CHANGE

There is no doubt that majority of Nigerian have been yearning for change in all aspects of life- political, economic, social, technological and security.  There are arguments as to whether constitutional review can bring about positive change. In our view, constitutional review alone will not bring about social change i.e. changes to the existing structures and social, political and economic arrangements.

Ultimately, changes will take place if the objective and subjective conditions are conducive for widespread changes in the political arena. We have argued elsewhere that for change to occur in any society requires the presence of objective and subjective conditions. [iii] Objective conditions exist when situations are evidently abnormal with huge contradictions which can only be resolved by change.

The subjective conditions are the organizational preparations required to bring about change. In our view, the objective condition is ripe in Nigeria. There is poverty in the midst of plenty. There are huge contradictions and gap between the poor and the rich. The country cannot continue in the way it is presently being run. Unfortunately, the subjective conditions are absent. There is no virile movement that is committed to change neither is there a vanguard revolutionary organization to guide that change.

There are no well organized democratic and popular organizations to support a change process. Although, there are  individuals committed to and are driving change, the organizational support required for sustainability and great impact is lacking. The challenge is to build the organizations with dynamic and visionary leadership as well as a committed followership that is dedicated to change. Therefore, ongoing attempts to build the requisite organization, leadership and followership for change must be assisted, nurtured and consolidated for the necessary change to occur in Nigeria.

Ultimately, democracy and development in Nigeria will depend on a long term strategy of changing the nature and character of the state and the conduct of politics, political party organising and eventual capture of political power by democratic, radical and progressive forces in Nigeria.

The present nature and character of the Nigerian state is such that political power has become the easiest method of primitive accumulation of capital. The resource curse and the oil economy have made rent seeking behaviour predominant leading to the collapse of Agriculture and industry.

There is the need for a change in the nature and character of the state in a fundamental manner that will affect the political culture and development paradigm in the country. This will affect political party organising so that there will be ideologically rooted parties that will practise issue based politics. Ultimately democrats and progressive elements will participate and change the colour of politics in Nigeria.

SENATE POSITION ON THE RECENT REVIEW

 

However, despite the limitations of constitutional review, it is a necessary step towards deepening democracy in the country and expanding the democratic space. This is why it is necessary for CSOs to engage the ongoing process of constitutional review.

On 26th July, 2017, the Senate voted on 33 amendments of the Nigerian Constitution.

The amendments of the constitution as captured by Premium Times is shown below [iv]:

Members of the Council of States — adopted.

This amendment was proposed to make former President of the Senate and former Speakers of the House of Representatives members of the influential National Council of State. It was adopted by the senators. The Council of States currently consists of the President (chairman of the council), the Vice-President (deputy chairman), all former presidents and all former heads of the state, all former Chief Justices of Nigeria, the President of the Senate (incumbent), the Speaker of the House of Representatives (incumbent), all state governors (incumbents), and the Attorney-General of the Federation (incumbent).

    Authorisation of expenditure — adopted

The president’s power to continue withdrawing funds from consolidated account after expiration of the annual budget has been whittled down from six to three months.

    Devolution of Power — rejected

Senators rejected this proposition by 90 to five votes when it came up.

 Financial Autonomy of State Legislature — adopted

Senators approved an amendment that will see state legislators superintend over their own budget, rather than the existing practice that gives governors powers to appropriate expenses of lawmakers.

Federal lawmakers at the National Assembly already enjoy financial autonomy.

Special accounts for local government — adopted

 

The proposal says local government administrators should be allowed to manage their own accounts as against the existing policy in which governors exert powers over allocations to local government areas.

This section, if amended, will allow separate accounts for local governments from states for receiving monthly federal allocation.

Democratic existence funding and tenure of LG Council — adopted

This amendment will prohibit constitution of caretaker leadership for LGAs, a tool that critics said governors have exploited to trample on the independence of local government areas.

State creation and boundary adjustment — rejected

In a narrow vote of 48-47, senators rejected an amendment to Section 8 of the Constitution that would have allowed only democratically elected local government councils to participate in state creation and adjustment of boundaries amongst states.

The collapsed proposal also sought to clarify identified ambiguities in the procedure for state creation.

Immunity for legislators for acts in the course of duty — adopted

Senators voted to give themselves immunity for anything they say on the floor during plenary or when they hold committee briefings, i.e.: they want absolute freedom of speech and expression while on duty.

One senator, however, rejected the amendment. The identity of the senator and reasons for the action are unknown.

Conduct of by-elections and power to de-register parties — adopted

The amendment seeks to alter the Constitution to give the Independent National Electoral Commission, INEC, powers to deregister any political party that fails to meet some criteria, which include failure to win at least one elected seat from councillorship to presidential after a generation election.

Presidential assent — adopted

Senators complain that the executive neither rejects, vetoes nor assents to several bills they passed after several months, leaving them confused on the fate of such bills. This proposal seeks to end this by making any bill that is passed by the National Assembly automatically become law if the executive fails to reject, veto or sign it into law after 30 days of transferring same to the president.

Time frame for submission of names of ministerial nominees — adopted

Senators recommend that the Constitution must spell out maximum number of days that a new president can delay in the appointment of ministers. They propose a maximum of 30 days from swearing-in day.

Submission of ministerial nominees with their portfolios — adopted

The amendment will require the president to attach specific portfolio (ministry) to every ministerial nominee for Senate confirmation.

12.Thirty-five percent affirmative action for women as ministers — rejected

Senators rejected mandatory 35 per cent slot for women in the federal cabinet.

Submission of commissioner nominees with their portfolios — adopted

An elected governor has 30 days from swearing-in day to name commissioners.

Submission of names of office of commissioners shall be attached with portfolio — adopted

The amendment will require the governor to attach specific portfolio (ministry) to every commissioner nominee for House of Assembly confirmation.

Appointment of minister from the FCT — adopted

Senators approved constitutional amendment to give a slot to the Federal Capital Territory in the Federal Executive Council. Currently, only the 36 states of the federation are given at least one ministerial slot each in the federal cabinet.

Change of names for LGAs — adopted

An amendment proposal for flexibility in the change of name of local government areas was approved by the Senate.

Changes will be easily effected to spelling and other errors in the name of any local government.

For instance, Atisbo Local Government Area in Oyo State is erroneously spelt in the Constitution as ‘Atigbo Local Government Area’.

 Independent Candidacy — adopted

Qualified citizens would no longer need a political party to stand in election.

Nigeria Police Force name change — adopted

Senate adopted an amendment to change the name of Nigeria Police Force to Nigeria Police in order to reflect the organisation’s core mandate.

Restriction of the tenure of President and Governor After Completion of Tenure of President or Governor to run for just one term — adopted

This proposal seeks to ban anyone who succeeds a president or a governor and completes the tenure of such president or governor from contesting for that same office more than once.

For instance, the situation in which former President Goodluck Jonathan completed the tenure of late President Umar Yar’Adua between 2010-2011, participated in the 2011 election and won a four-year term and still ran for election again in the 2015 election will no longer be permitted if the proposed amendment scales through.

What the senators now propose essentially means that when someone succeeds a president or a governor, the person is considered to be spending the first of the two-term privilege the Constitution gives to an individual to run for office.

Separation of Office of the Accountant-General— adopted

The Office of the Accountant-General of the Federation (existing) will be separated from the Office of the Accountant-General of the Federal Government (to be created).

Office of the Auditor-General to be included in first line charges of consolidated revenue — adopted

The Senate proposes that funding for this office should be prioritised.

Separation of Office of the Attorney General from the Minister/Commissioner of Justice — adopted

If this amendment is approved, the Attorney-General of the Federation will no longer be the Minister of Justice and attorney-general of a state will no longer be commissioner of justice.

Judiciary — adopted

This amendment proposes, amongst other things, to allow justices of the Court of Appeal and the Supreme Court to hear matters in their chamber if necessary.

Determination of pre-election matters — adopted

This amendment will make it possible to set timelines for determining pre-election matters.

Civil Defence amendment — adopted

Core functions of Nigeria Security and Civil Defence Corps will be incorporated in the Constitution.

Citizenship and Indigeneship — adopted

Proposed amendment to give married women the right to choose where they want to claim as their state of origin for the purpose of standing election narrowly passed.

Procedure for overriding presidential veto in Constitutional alteration — adopted

The proposal seeks to give the legislature the power to override the president’s veto on matters of amendment to the Constitution without the president’s final signature.

Amendment to Section 315 of the Constitution — adopted

Senators seek to delete four special laws placed under the Transitional Provisions and Savings component of the Constitution.

The National Youth Service Corps Decree (1993), the Public Complaints Commission Act, and the National Security Agencies will be stripped off their special status that makes it difficult to effect any amendment into them.

The senators described them “law making powers” of the executive because it requires the same process needed to amend the Constitution itself to amend any section of these laws.

If the amendment passes, the three laws will now be part of regular laws in the statute books and can be easily altered by the National Assembly.

Investments and Securities Tribunal — adopted

The proposal seeks to establish the Investments and Securities Tribunal in the Constitution to deal with capital markets and other investments matters.

Reduction of age for election — adopted

Age restrictions for standing in elections are expected to be reviewed downward in the Constitution. It is expected that the required age to stand in the presidential election will be reduced from the current 40 to 35.

Authorisation of expenditure time frame for laying Appropriation bill, Passage — adopted

This proposed amendment targets a timeline for the president and governors to present their respective budget proposals for the next fiscal year.

Some analysts have argued that the current budgeting process in the country is unsustainable, and proffer some solutions.

Land Use Act

The Senate voted to retain the Land Use Act in the constitution.

Deletion of State Independent Electoral Commission from the Constitution — adopted

 

Analysts have expressed concern in three areas. The first is that the Senate is constantly increasing its powers. For instance, the Senate approved for its principal officers to become members of the Council of States, giving themselves immunity, and making laws passed by the NASS to automatically become law if the executive fails to reject, veto or sign within 30 days.

Secondly, the Senate rejected devolution of powers by an overwhelming vote of 90 to 5. This does not seem to reflect the view of the general public. Thirdly, the Senate rejected thirty five percent affirmative action for women.

 

HOUSE OF REPRESENTATIVES POSITION ON THE RECENT REVIEW

On 27th July, 2017, House of Representatives voted on the amendments and the result of the votes is shown below: [v]

Bill 1: Members of the Council of States To Include former Senate President & House of Reps Speakers as members. Yes – 274; No – 6; Abstain – 2

Bill 2: Reduction of Authorization of expenditure Before Budget Passage from 6 to 3 months

Yes: 295; No: 0; Abstain: 0

Bill 3: Devolution of Powers to States. Yes: 210; No: 71; Abstain: 0

Bill 4: Financial Autonomy for State Legislature. Yes: 286;No: 10; Abstain: 1

Bill 5: Financial Autonomy to LGAs. Yes: 291; No: 12; Abstain: 1

Bill 6: Democratic Existence Funding and Tenure of LGAs. Yes: 285; No: 7; Abstain: 1

Bill 7: State creation and boundary adjustment. Yes: 166; No: 125;Abstain: 3

Bill 8: Immunity for legislators for Words Spoken in Chamber or in Committee Meetings in Course of Duty. Yes: 288; No: 10; Abstain: 1

Bill 9: Political Parties and Electoral Matters: Time to conduct Bye Elections and Power to deregister parties. Yes: 293;No: 2; Abstain: 1

Bill 10: Presidential Assent To Constitution Amendment Bill. Yes: 248; No: 28; Abstain: 4

Bill 11: Time frame for submission of names of ministerial nominees. Yes: 248; No: 46; Abstain: 1

Bill 11b: Submission of Ministerial Nominees with their Portfolios. Yes: 248; No: 46; Abstain: 1

Bill 11c: 35% affirmative action for women as ministers. Yes: 248; No: 46; Abstain: 1

Bill 11d: Submission of Commissioners Nominees with their Portfolios. Yes: 248; No: 46; Abstain: 1

Bill 11e: Submission of names of office of commissioners shall be attached with portfolio. Yes: 248; No: 46; Abstain: 1

Bill 11f: 35% Affirmative action for women as States Commissioners. Yes: 248; No: 46

Bill 12: Appointment of Minister from the FCT. Yes: 191; No: 21; Abstain: 3

Bill 13: Change of names of some LG councils: Ebonyi, Oyo, Ogun, Plateau and Rivers. Yes: 220; No: 57; Abstain: 8

Bill 14: Independent Candidacy. Yes: 275; No: 14; Abstain: 1

Bill 15: The Nigeria Police Force to become Nigerian Police. Yes: 280; No: 9; Abstain: 1

Bill 16: Restriction of the Tenure of Presidents and Governors. Yes:292; No: 3; Abstain: 3

Bill17: Separation of office of Accountant General of the Federal Government from Accountant General of the Federation. Yes:274; No: 23;Abstain: 2

Bill 18: Financial Independence for Office of Auditor of Federation/State. Yes: 289; No: 11; Abstain: 0

Bill 19: Separation of Office of the Attorney General of the Federation/State from the office of Minister/Commissioner of Justice. Yes: 234; No: 58; Abstain: 3

Bill 20: Submissions from the Judiciary. Yes: 265; No: 6; Abstain: 7

Bill 21: Determination of pre-election matters. Yes: 288; No: 3; Abstain: 1

Bill 22: Consequential Amendment on Civil Defence. Yes: 293; No: 2; Abstain: 1

Bill 23: Citizenship and indigenship . Yes: 208; No: 78; Abstain: 2

Bill 24: Procedure for Overriding Presidential Veto in Constitutional Alteration. Yes: 271; No: 20; Abstain: 0

Bill 25: Removal of law making power from Executive Arm.

Bill 25: Part (1): Removal of NYSC, National Security Agencies, Public Complaints Commission Acts from the Constitution. Yes: 209; No:47; Abstain: 5

Bill 25 Part 2: Removal of Land Use Act from Constitution. Yes:139; No:148; Abstain:4

Bill 26: Investment and Securities Tribunal. Yes: 270; No: 12;Abstain: 2

Bill 27: Reduction of Age for Election. Yes: 261; No: 23; Abstain: 2

Bill 28: Authorization of expenditure time frame for laying Appropriation bill, Passage etc. Yes: 252; No: 7; Abstain:2

Bill 29: Deletion of the National Youth Service Corps decree from CFRN. Yes: Rejected

Bill 30: Deletion of Public Complain Act from CFRN. Yes: Rejected

Bill 31: Deletion of National Security Agencies from the CFRN. Yes: Rejected

Bill 32: Deletion of land Use Act from CFRNYes: Rejected

Bill 33: Deletion of State Independent National Electoral Commission (INEC) from CFRN

Yes: 229; No: 51; Abstain: 1

Bill 34: Inclusion of Section 141 of Electoral Act into the Constitution. Yes:241; No:18; Abstain:1

There are nine key areas where the House of Representatives differed with the Senate: [vi]

The house passed thirty five percent affirmative action for women as Ministers but was rejected by Senate.

Appointment of Minister from FCT was passed by Senate but rejected by the Hosue.

Change of names of some Local Government Councils was passed by the Senate but rejected by the House.

Allowing women where to claim state of origin for the purpose of contesting election was passed by the Senate but rejected by the House.

Removal of the law-making power of the executive arm (NYSC) was passed by the Senate but rejected by the House.

Removal of the law-making power of the executive arm (National Security Agencies) was passed by the Senate but rejected by the House.

Removal of the law-making power of the executive arm (Public Complaints Commission) was passed by the Senate but rejected by the House.

Removal of the law-making power of the executive arm (Land Use Act) was passed by the Senate but rejected by the House.

Deletion of State Independent Electoral Commission (SIEC) from the constitution was passed by the Senate but rejected by the House.

THE WAY FORWARD

Constitution is the most important document for the governance of any country. If the constitution is made in a participatory process, the people will own the constitution and their engagement in the governance process will be very deep. Unfortunately, there has never been a participatory approach to constitution making in Nigeria. The political elite has opted for a piecemeal approach to amending the constitution.

Recently, the Senate and House of Representatives started a process to amend 33 areas in the 1999 constitution. Some of the proposed amendments such as institution of local government autonomy is commendable and civil society organisations are committed to continuing advocacy to ensure that the Houses of Assembly endorse those sections.

Some of the rejected amendments especially those affecting women such as the constitutional provision for affirmative action is quite unfortunate. But we take solace in the high number of legislators especially in the House of Representatives that voted in favour of this amendment.

Finally, there are proposed amendments meant to increase the power of and give immunity to the legislators which must be fought vigorously because they portend great danger for democracy. In the coming weeks, civil society organisations will be engaging the process and will make a clarion call on Nigerians to join the effort at deepening democracy in the country.

ENDNOTES

[i] Bagehot, W. (1949), The English Constitution: Origin of Modern Constitutionalism. London, Harper and Row.

[ii] Igbuzor, O and Ibrahim, J (Eds) (2005), A citizens Approach to Making a Peoples’ Constitution in Nigeria.

[iii] Igbuzor, O. (2005), Perspectives on Democracy and Development. Lagos, Joe-Tolalu & Associates.

[iv] Ogundipe, Samuel (2017) in Premium Times, 27th July, 2017. Analysis: The 33 Major Amendments the Senate Considered for Nigerian Constitution.

[v] Ayitogo, Nasir (2017) Premium Times 27th July, 2017

[vi] Ogundipe, Samuel (2017), Analysis: Constitutional Amendment-Nine Key Areas Senate, House of Reps disagree in Premium Times 27th July, 2017

Dr. Otive Igbuzor, Executive Director, African Centre for Leadership, Strategy & Development (Centre LSD)