The constitution can be viewed as the culminating expression of a mobilized citizenry. Its amendment is not new to our polity. Overtime, it has truly become a thorny issue. Traditionally, constitutional review is a democratic process, which allows for an appraisal of the constitution. This procedure establishes relevant, workable, acceptable and enforceable provisions into the constitution, whereas provisions that have outlived their relevance are expunged. This process injects people oriented laws for the overall development of a nation.
Prior to independence, we have had the Nigeria’s first constitutions enacted by order in council during the colonial era, when the country was administered as a Crown Colony, secondly, the Independence constitution of 1960 – Nigeria’s first constitution as a sovereign state; the first republic 1963 constitution established the country as a Federal Republic; the 1979 constitution brought in the Second Republic, abandoning the Westminster system in favour of an American-style presidential system, with a directly-elected executive. The 1993 constitution was intended to see the return of democratic rule to Nigeria with the establishment of a Third Republic, but was never fully implemented, and the military resumed power until 1999. But the 1999 constitution restored democratic rule to Nigeria, and remains in force to date.
In the polity at the moment, the review of the 1999 constitution of the Federal Republic of Nigeria has taken the center stage. Attempts were made during the administration of President Olusegun Obasanjo, to amend the constitution. The push for the amendment, so strong then due to the third-term agenda of the President, made many political pundits and public analyst assume it would scale through. The senate at that time, led by Senator Ken Nnamani, in an attempt to scuttled the third-term agenda, did what many political pundits said amounted to ‘throwing away the baby and the bath water’, thus putting to an end the push for constitution amendment in that administration.
Despite this huge hiccup, the cry for constitutional amendment has continuously increased among the citizenry particularly in this dispensation. Many see it as the permanent solution to the constant agitation for true federation; others see it as one of those diversionary tactics of the national assembly which is aimed at engaging members of the public on an endless constitution amendment discourse while making the national assembly appear to be working in the eyes of Nigerians.
In 2010, when the National Assembly scaled through with the first amendment to the constitution, a good number of senators who are in the present senate were part of that process. Senate President David Mark was at the helm of affairs; also the Deputy Senate President Senator Ike Ekweremadu and Senate Majority Leader Victor Ndoma-Egba, and a number of other senators who were in the last exercise are still part of the current exercise. Judging from this, one could safely assume therefore, that the lawmakers have their job cut out for them, with an inkling of a possibility of an easy ride. But such a conclusion can hardly come through particularly in a complex political terrain like Nigeria.
Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation. Therefore, Is the national assembly truly ready to handle the seemingly difficult aspects of the constitution that some persons see as ‘no-go-area’ or do they want to take Nigerians for a ride?, Are they prepared to amend the constitution to reflect the wishes and aspirations of the people that elected them? These are the questions our lawmakers must look critically at and convince Nigerians about their sincerity of purpose in bringing about the needed review to the constitution.
Some prominent Nigerians have said that no constitution amendment or system of government can change the way things are going in Nigeria unless the government -of which the legislature is an arm – musters the political and legal will to tackle corruption. They insist that the constitution has nothing to do with what is happening today – the insecurity, the lack of water, good roads and nothing to do with absence of all the good things that Nigerians are craving for in order to live decently.
Senator Eyinnaya Abaribe, in a lecture he delivered in December, 2012 during the law week of the Abuja Branch of the Nigerian Bar Association (NBA), declared that amending the constitution is not the solution to the developmental challenges facing the country; he argued that what was required was for all Nigerians to subject themselves to the rule of law. According to him, no amount of amendments can stop sectional agitation in the country.
Also, some civil society groups declare that for the constitution amendment to lead to an output that can truly transform the controversial and wasteful system currently in practice, there is the need to subject the ongoing constitutional review process to a referendum by Nigerians, insisting that the referendum was necessary in other to confer legitimacy on the constitution. Youth groups are also craving for an amendment that would incorporate the youths of the country.
The views canvassed above, covers a broad spectrum of Nigerians. Consequently, the seventh National Assembly in line with the thinking of most Nigerians must pick up the gauntlet as they tackle this all important task of amending the Nigerian Constitution.
The Senate Committee on Constitution Review (SCCR) headed by Senator Ike Ekweremadu, who had equally chaired the National Assembly’s Joint Committee on Constitution Review (JCCR) before its dissolution in 2009, organized a retreat for its members and stakeholders in Asaba, Delta State between July 19 and 21, 2012 to cross-fertilize ideas with constitutional experts, professional bodies, as well as political actors on these views. Also, a grassroots public forum for Nigerians from all walks of life to make inputs was held in the 360 constituencies across the federation, followed shortly by Senate zonal public hearings which held across the six geo-political divisions.
Recently, consensus is beginning to emerge as to the desirability of certain issues in the amendment process. At the retreat in Asaba, Senator Ekweremadu told Nigerians that no fewer than 56 requests for state creation have been received at the Senate and that the SCCR committee identified 16 critical areas of the constitution for amendment, based on the frequency of occurrence in national discourse as well as reports gleaned from the last review exercise, which had to be expunged due to political reasons. He further stated that the SCCR revisited the report of the last committee to sift matters requiring immediate attention, and came up with the following critical issues:
11. Devolution of powers – The legislative list in our constitution is skewed in favor of the Federal Government and needs to be revisited, to give our constitution a true Federal character. Is the National Assembly willing to devolve more powers to the states to reduce the omnibus powers currently enjoyed by the Federal Government?
2. Creation of more states – Requests for the creation of more states to address obvious injustices and imbalances of the past, has persisted: How ready is the National Assembly to tackle this issue frontally with all sense of fairness devoid of the usual zonal sentiments?
3. Recognition of the six geo-political zones in the constitution: This issue remains constitutionally unclear: What are the constitutionally recognized geo-political zones? Is it North and South or South South, South East, Southwest, North Central, Northeast, and Northwest with equal number of states? A clear-cut analysis must be made and entrenched into our constitution for better understanding. Another contentious issue is that of true federalism, what are the federating units? Is it the states or the geo-political zones? If these geo-political zones are to be recognized by the constitution, would it be done in a way as to forestall divisive tendencies which it might likely create if not handled adequately?
4. Role for traditional rulers – It is being suggested that the six geo-political structure and roles for our traditional rulers should both be expressed in our constitution.
5. Local government – The issue of local government creation; should it be left to the states or should the status quo be maintained? The system of local government administration, including funding, and autonomy, including its functions and powers are yet to be settled
6. Extracting the following from the constitution: (a) Land Use Act (b) NYSC Act and (c) Code of Conduct. These laws are part of our constitution. Amending any of them requires the same cumbersome procedure as amending any provision of the constitution. Hence, no amendment has been made to any of them since they were enacted, in spite of the present realities that recommend each of them for an update, review or amendment. It is being suggested that taking them out of the constitution will create some flexibility in amending them in accordance with the dynamics of the society.
7. Fiscal Federalism –: Do we have a fiscal federal structure that adequately takes care of all the component units of the federation? If no, how can we work out a fiscal federal structure that will drive competition and yet bring about overall development of the nation?
8. Amendment of provisions relating to amendment of the constitution; state creation and boundary adjustment – to remove ambiguities.
9. Immunity Clause –: The issue of immunity from criminal prosecution and civil proceedings for the President, Vice President, governors and their deputies has been a subject of intense debate and there are agitations that it should be expunged from the 1999 constitution. Are the lawmakers ready to look at the dangers of such extraction and come out with a workable arrangement? If that provision is not expunged from the constitution, the limits of the immunity clause should be clearly stated.
10. Nigeria Police –: Is the police force as presently structured meeting the challenges of our internal security? If not; why? Do we need state and local government police as was the case prior to 1966? If so how do we work it out to address the fears of those who are opposed to it?
11. Judiciary –: What constitutional reforms do we put in place to guarantee the free flow of justice in Nigeria?
12. Executive –: Do we go for a single term or multiple terms for executive offices? Do we go for the Presidential or Parliamentary system of Government?
13. Rotation of offices –: Can the principle of power rotation be entrenched fully into our constitution or be left as a political party affair? Will a constitutional provision of rotation help to stabilize the country and its component units?
14. Genders and special group –: Does our women, the physically challenged and any other special group requires constitutional protection or advantage?
15. Mayoral status for the Federal Capital Territory Administration – As the case in similar cities all over the world, will Abuja be better off with a Mayoral system Instead of a semi state?
16. Residency and indigene provisions – : Does what we have in Section 42 of our constitution sufficiently guaranty equality of opportunity to all Nigerians wherever they reside irrespective of their tribe, language, religion, sex and state of origin?
All these, are fundamental issues and the questions that have arisen must be critically looked at by the National Assembly. Other vital areas of interest that Nigerians talk about includes: Revenue sharing formula, derivation, reviewing the penal code in order to effectively tackle corruption. Others are gender equality, mergers of MDA’s for efficiency, national security – terrorism and insurgency; boundary adjustment; further fine-tuning of the electoral system; and the prisons.
People turned up in their numbers at the public hearing in various constituencies where the lawmakers went to seek the views and opinions of their constituents concerning the key areas of the constitution that needs review, this is a clear demonstration that Nigerians see constitution amendment as very vital to the survival of democracy and ultimately to the peaceful co-existence of the various units in the country. The bulk is now on the desk of the lawmakers to ensure that their position on any issue, should be that made by the Nigerian people through their inputs, whether through their memoranda, contributions at public hearings and their elected representatives at both the National and State Assemblies. They should bear no allegiance to anyone, except that which they owe to the Federal Republic of Nigeria. They must not protect any interest, except that of the generality of the Nigerian people and posterity. They should also ensure that they are driven by the force of superior argument and public will knowing that they owe Nigerians quality leadership, legislative due process, transparency, inclusivity and popular participation. The generality of Nigerians must not only be seen to own the process but they must drive the process in order to take full responsibility of the eventual outcome.
The Senate chairman of the committee promised that the process of ensuring a thorough and enduring amendment of the constitution would remain open and transparent. But, Nigerians have become too accustomed to failed promises. Hence, the National Assembly must go beyond mere promises in this very important matter. It is important to bear in mind that a constitution, being the fundamental law, or the ground norm, must define, with imagination, the terms of the social contract. It must guarantee fundamental rights and civil liberties, and the mechanisms for their enforcement.
Though, worth commending is the 2010 exercise which saw the National Assembly for the first time in the history of Nigeria brake the jinx in constitution amendment notwithstanding the fact that what many people saw at that time was neither a wholesale constitution making nor a comprehensive review. But the present socio-political situation in Nigeria and agitations by the citizenry for equity, inclusiveness and good governance makes it essential that the 1999 constitution be reviewed comprehensively. In addition, the quest by Nigerians to be equal stakeholders in the Nigerian project makes it even more imperative.
Thomas Jefferson states that he knows ‘… no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education” Nigerians have told the lawmakers what they want amended in the constitution. Our lawmakers must respond adequately by matching words with action in keeping with international best practices, and it is only when this is truly done that the Nigerian masses will see the National Assembly as not playing to the gallery.