Limitations Of The 1999 Nigerian Constitution

By AYO SOGUNRO (Headline not Ayo’s)

CONSTITUTIONAL issues are usually ignored by many Nigerians until their rights are affected in a visible and direct manner.

However, here is your periodic reminder that the 1999 Constitution is a flawed document and cannot work for the benefit of the majority of us Nigerians.

1. The Nigerian Constitution is, literally, a military enactment. It was singlehandedly decreed into law by General Abdulsalam Abubakar as Decree 24 of 1999, without public input, without public debate, and without a public vote on it. This is absurd in a democracy.

2. The Nigerian Constitution is a document that safeguards the established political system and elite interests created by the colonial government and perfected by the military government. It highly centralises powers and functions through ridiculously expansive federal executive powers.

3. The Nigerian Constitution safeguards military legacy. It bans the judiciary from hearing cases on the competency of the military to make laws/policies from 1966 to 1999, thus preventing opportunities to address and ensure accountability for decades of oppressive military rule.

4. The Nigerian Constitution gives the government without making it accountable. It bans the judiciary from hearing any case on whether government action/policy is in compliance with the government’s constitutional duties, including duties to provide healthcare, education, and equal opportunities.

5. The Nigerian Constitution creates a police state by giving the unilateral control of the armed forces and police to the executive government without providing legislative oversight and reporting. The NASS can pass laws to regulate military affairs but it has no oversight role.

6. The Nigerian Constitution limits the public participation of ordinary citizens. We can only vote at elections. There are no provisions for direct democracy: such as city assemblies, town halls, referendums, or a requirement for government to consult communities on policy issues.

7. The Nigerian Constitution is elitist. It establishes a number of ‘executive’ bodies that do not have legislative oversight and do not report to the public. The worst of these bodies is the RMAFAC which is an elite club that determines the salaries of public officials!

7b. RMAFAC stands for Revenue Mobilisation Allocation and Fiscal Commission. Think of it as similar to INEC, but for determining salaries and payments of the executive, legislature, and judiciary. Do you even know who the members are? Why do we need them? Why don’t they report to us?

NASS and the state Houses of Assembly (HoAs) have powers to amend the constitution. And they usually do so, often in their own self-interest and with or without public input. This too is a flaw. A body created by a Constitution should never have the sole power to amend its own origin document.

The role for NASS/HoAs in a reform process should be to make one last amendment: empower government to initiate a consultative and participatory constitutional making process. And then the legislators step back and allow the process to run its course. This is what I agitate for.

So yes, NASS has a role in constitutional reforms. But its role is to pave the legal path for the actual reform process. The current provisions that make NASS the sole constitutional authority is just as flawed and as paternalistic as the rest of the Nigerian Constitution.

What to do next?

1. Amend the current Constitution to include provision for referendums & con-conference.

2. Based on amended provisions, NASS drafts a framework for a constitution deliberation process. It should consult constitutional experts.

3. The results of the proposed framework are set out as referendum questions and people vote. If yes wins, proceed to 4. If no, start again.

4a. Based on the contents of the proposed framework, constitution deliberations commence. This must be as representatively as possible.

4b. This means that a conference cannot sit in Abuja. That is silly. They must go out to all hamlets and streets across Nigeria and consult.

4c. We must take such a conference as seriously as we take voter registration or census. We must collate views from all over Nigeria.

5. Based on results from the data collations/representative deliberations, the committee/NASS sets out a draft constitution.

6. The draft constitution should be sent to the judiciary for review on principles of democracy, rule of law and constitutionalism.

7. After the judiciary approves the draft, a new referendum to adopt its contents is conducted. If people vote yes, then all is set.

On the substantive aspects, the constitution MUST:

1. Make government strong enough to be effective & restrain its powers so it doesn’t dictate.

2. Clearly separate government powers into different arms, but also ensure checks & balances so that no one arm is practically the strongest.

3. Provide a bill of rights for the people. And ensure that government powers are used ONLY to respect, protect, promote and fulfil those rights.

4. Cater to contextual divisions (such as ethnic & religious divisions) in ways agreed on by the people, subject to the bill of rights.

5. Ensure opportunity for improvement (without being too flexible) by making provisions on referendums and amendment.

5b. On this last point, nothing is permanent. The Constitution should be a living document, not a static text insisting on way past ideas.

How do we make the needed steps happen?

For those asking me how do we go about this, this is basically asking how do social movements start. First, create awareness of the social problem. Many people don’t know there is a problem. Until we educate and enlighten everyone, we cannot bring about a movement.

Yes, many of us know that Nigeria has a perpetual problem. But it seems to me that very few realise that the problem is the existing system itself. People think a current leader is the problem, or some laws, or NASS, or elections are the problem. Few realise it’s the whole thing.

Until Nigerians realised that the British were a problem, there was no movement to end colonialism. In the same way, until we realise that the existing system is a problem, there can be no movement to end it. There is no point marching on Abuja today when there is no awareness.

I am not asking anyone to march to Abuja today in protest. The time for marching has not yet come. First, we need awareness across the country, a conscious understanding that this is not right. Educate people around you. Share the gospel of a brand-new Nigerian reconstitution.

Do whatever you can to increase awareness. Blog the problem, tweet the problem, write on the problem, sing about the problem, discuss it in religious meetings and business meetings. Contextualise it for your listeners. See the Nigerian problem everywhere and tell people about it.

When there is sufficient awareness across the country, when the majority of Nigerians understand that the political system is rigged in favour of a political class and designed to prevent the masses of citizens from rising above a certain level, then the movement will be ready.

When majority of Nigerians understand that a renewed Nigeria is not just about who we elect or who is in power but about how people get elected and get into power, then a movement will be ready. Awareness may happen next year or it may happen in 20 years. But it will happen one day.

What our politicians keep doing is to forestall awareness by bribing the masses with trinkets: a bridge here, a road there, while they steal an entire landscape to develop a luxury estate for the elite. But they can only run for so long; a day of judgement is coming for them.

Let me wrap up. How will a movement happen?  Awareness > coalescence > agitations > change. There’s no shortcut. Your permanent voter’s card (PVC) will not do the work for you. You have to do it yourself. Educate. Organise. Demand.  When successful, then you can let votes do the rest of the work.