TUNDE AJAJA examines the options before the National Assembly to either jettison the idea of repeatedly amending the constitution in piecemeal or adopt the view of some that the document should be dumped and a new one drafted by the people
The 1999 Constitution has for long been enmeshed in controversy and battle for acceptance. Many lawyers, statesmen and respected Nigerians have argued that the document, bequeathed to Nigerians in 1999 by the military, is faulty and incapable of taking the country anywhere near the Promised Land.
Some even believe the constitution is to blame for the country’s many woes and its stunted development despite its rich human and natural resources.
For example, legal luminary, Chief Afe Babalola (SAN), said in 2019, “The 1999 Constitution is, in large measure, responsible for the problems we have in Nigeria today. The constitution has discouraged and crippled development in the states. Consequently, Nigeria remains a poor country like most African countries.”
The stiff aversion to the constitution is not just about its provisions, although that is significant, the deep reservations that characterise its continued use stems from how it even came about.
The first line of ‘We the people of the Federal Republic of Nigeria’ has been severely criticised, because it has been argued that at no time did the ‘Nigerian people’ come together to draft or endorse it, neither were they privy to its enactment.
Elder statesman, Prof Ben Nwabueze, (SAN) said in 2018, “A new constitution involves the entire people of Nigeria. The constitution that we have now, though it says, ‘we the people of Nigeria’, was made by the military Decree 24 of 1999. It is not the people’s constitution.”
Professor of International Law and Jurisprudence, Akin Oyebode, was more explicit when he spoke about it in February, stating that, “Decree 24 of 1999 (constitution) is an illegitimate instrument. You would remember the patriot said one of the tragic flaws of that arrangement is that it told a lie against itself. Where did we people gather to discuss and agree together? We never had that. It was a product of a military dictate and about 25 Nigerians were constituted to draft it.”
The view of the pioneer Interim National Chairman of the ruling All Progressives Congress and former Osun State Governor, Chief Bisi Akande, is equally instructive when he said the document could only prepare Nigeria for bankruptcy.
He said in 2017, “The 1999 Constitution is Nigeria’s greatest misadventure since Lugard’s amalgamation of 1914. All the angels coming from heavens cannot make that constitution work for the progress of Nigeria. It should only be scrapped as bad relics of military mentality, otherwise, it will continue to dwarf Nigeria’s economy and stifle the country’s social structure pending a disastrous and catastrophic bankruptcy.”
It can be argued, rightly so, that these are purely the views of private but prominent Nigerians. But, the serial efforts to amend the constitution seem to suggest that indeed there are fundamental issues with the constitution.
Interestingly, the current National Assembly is carrying out the Fifth Amendment to the constitution, whereas the United States that ratified its constitution in 1778 has only 27 amendments till date and the last one was done in 1992.
Meanwhile, the amendment of the Nigerian constitution, ostensibly for the document to reflect current realities, started in 2010, just 11 years after its enactment. And since then it has become a ritual of every Assembly. And the exercise is not cheap; the minimum amount spent by each Assembly is about N1bn, often shared by the two chambers – Senate and House of Representatives.
On January 10, 2011, the then President Goodluck Jonathan signed the prolonged first and second amendments done in 2010 into law, conceding that amending the 1999 Constitution would have to be a continuous exercise because of obvious defects in the document.
“We have operated this constitution from then (1999) till now and one is quite conversant with some of the provisions that are a bit cumbersome and some that we cannot implement properly. We still have such in the Constitution and we will continue the process of amendment,” Jonathan said.
Meanwhile, there are opposing views on the continued use of the 1999 document. The National Assembly believes in amendment, perhaps till it becomes what is fairly manageable. But many of those opposed to it argued that it’s probably one of the bad things to happen to Nigeria.
A former Senate Chief Whip, Prof Olusola Adeyeye, said in April 2019, “I dare to tell this nation that this constitution is the problem; this constitution can never give us progress; it can never give us peace; it can never give us unity and unfortunately, most of us in this National Assembly do not have the spine to face what we need to give this Republic to have peace and progress.”
Also, 82-year-old Senior Advocate of Nigeria, Chief Robert Clarke, described the constitution as rotten. “I believe that if we want to make amends, there is no need to amend a rotten egg. Except you change the constitution, then there is nothing to change,” he said.
Elder statesman, Tanko Yakasai, said in May, “I swear to God, I will support going back to 1963 constitution, but I don’t want to take people for granted that under the present arrangement, the North has an advantage in terms of representation in the National Assembly. Enough of that! We are talking about the future of our children, grandchildren and the future generation.”
Just about a week ago, a former President of the Nigerian Bar Association, Chief Wole Olanipekun (SAN), said, “The constitution needs a total overhaul, redrafting, re-crafting and a total replacement, starting from the preamble to the definition schedule. Between now and 2023, we should be able to have a clean, practical, pragmatic and acceptable constitution which can jurisprudentially be described as grundnorm.”
Many people have advised that the National Assembly should rather focus on how a new constitution would be drafted for the country.
“Ben Nwabueze continues to say it that it (the constitution) is a fraud and we have to jettison it and do an autochthonous constitution for ourselves,” Oyebode counselled.
However, those in support of the constitution often argue that Justice Niki Tobi-led committee, saddled with the responsibility of drafting the constitution by the then Head of State, Gen Abdusalami Abubakar, visited different zones for consultation and accepted memoranda from people before coming out with the report.
But, in a piece that illustrated how the 1999 constitution came about, a former Director at the Presidency and veteran journalist, Mr Eric Teniola, explained that after Abdusalami inaugurated the committee on November 11, 1998, Tobi’s committee worked for less than 155 days to produce the constitution.
He said, “Niki Tobi’s committee visited just a few states, stayed most of the time in Abuja, held public hearing just for a few days, compiled its report and submitted, thinking that members of the Armed Forces Ruling Council would not approve most of its recommendations. Only a few memoranda were entertained by the committee.”
He added, “It is unfair for a country with 36 states excluding the Federal Capital Territory of Abuja, 774 local governments, over 300 tribes and over 2,000 pressure groups to have a constitution of that magnitude produced within such a period.
“As of the time the presidential election was held in the country (February 27, 1999), there was no constitution. Justice Niki Tobi submitted his committee’s report on April 22 and the Armed Forces Ruling Council ratified that report on May 3 while General Abubakar promulgated it to a constitution on May 5.
“President Olusegun Obasanjo was sworn-in on May 29, 1999. A clean copy of the constitution was not even ready until after President Obasanjo and the governors were sworn-in.”
He said the company that printed the constitution in Abuja worked nonstop on the night of May 28, 1999, to make sure few copies were produced so that Obasanjo could hold one at his swearing-in at the Eagle’s Square in Abuja.
A Senior Advocate of Nigeria, Mr Dele Adesina, also said in 2019 that he believed the 1999 Constitution was the problem.
He said, “So many established constitutional authors have either described the constitution as illogicality and fraud because it says ‘we the people…’ whereas Nigerians never gathered to draft it and there was never a referendum to give it a popular legitimacy.
“I remember that his (Tobi) committee sat at the Sheraton Hotels. How many people had access to that meeting? They went to different zones, but one hall meeting with selected people cannot represent the views of all.”
On the way out of the incessant amendments, legal experts have advised that instead of wasting public funds on amending a document that could hardly be salvaged, members of the National Assembly should be busy with how to pass laws to draw up the modalities for convening a constituent assembly that would give Nigeria an “autochthonous” constitution.
Oyebode had, on a television programme, said, “I honestly believe that the NASS is incompetent to fabricate a constitution for Nigeria or even amend what passes as the Nigerian constitution, except of course if they are looking at the 1999 constitution as just another statute, maybe on that basis they would have some point, because that constitution is Decree 24 of 1999.”
He, however, advised, “Once a constituent Assembly is convened and elaborate a new constitution for Nigeria. Such would be put to the litmus test of constitution making across the world, which is a referendum. If Nigerians vote and endorse what the constituent assembly gives us, then we say a new constitution has come into being.”
Akande, who was the pioneer interim National Chairman of the ruling All Progressives Congress, argued that “the 1999 Constitution can never be beneficially reviewed and the ongoing piecemeal adjustments or amendments can only totally blot the essence of national values and accelerate the de-amalgamation of Nigeria.” He advised that a new constitution was better.
Meanwhile, a former member of the House of Representatives, Dr Ehiogie West-Idahosa, said that he was more worried by how the document had been used than the constitution itself.
“If these set of Nigerians are the ones to operate that document, it is not yet Uhuru. I worry more about the operators than the document itself,” he said.
West-Idahosa, who is also a lawyer, was of the view that even though the constitution might be defective, it had been used to govern the country since 1999 and the idea that people would be elected from different places to represent the views of Nigerians appeared to him like a pipe dream.
He said, “I like to ask, can you completely sweep that document aside? What will be the methodology for selecting those who are to re-write the constitution?
“Do we expect the members of the National Assembly to relinquish their rights under the constitution and accept another body, albeit being created arbitrarily to put together a new instrument as the operative law for Nigeria? I think that is where we have the quagmire. And at no time can a country’s statutory instrument be vacant.
“Even as strong as American democracy is, they have amended their constitution several times.”
He stressed that if Nigeria got a perfect document, nothing would change if the people and their leaders do not change, pointing out that Britain, a developed country, does not even have a constitution.
He said since Nigeria already had a structure on ground, it could be improved upon in instalments, starting with the important things.
A member of the Constitutional Review Committee, Senator Ajibola Basiru, who spoke in his private capacity, suggested that a new constitution needed to be drafted, noting that the current constitution is only federal in name and not in substance.
He added, “Part of what some of us would be canvassing at the constitutional review committee is that the National Assembly should have a holistic review of the 1999 Constitution so that there will be no issue about where to amend and where not to.
“Some of the key issues I think is imperative is to look into the structure of government. Personally, I think we should examine which is suitable for Nigeria between presidential system and parliamentary system. I’m disposed to the parliamentary system because it is cost-effective, more responsive to the people and the level of acrimony between the executive and legislature would reduce.
“We also need to look at our 36 states structure. The task of engendering development, security and political development require a total overhaul of the constitution. The Federal Government should only be concerned with issues like foreign relations, defence, interstate cooperation, economy and currency. Other matters should be left to the states or regions as the case may be to galvanise grass roots development.”
A Senior Advocate of Nigeria, Mr Seyi Sowemimo, is however of the view that Nigerians could achieve what they want through an amendment to the constitution.
He explained that the 1999 Constitution was not at much variance with the 1979 Constitution, which he said was put together by a good number of eminent Nigerians.
“Chief Obafemi Awolowo would have helped much if he wanted to be part of it but he opted out, but we had relatively good people on it,” he added.
He stressed that any amendment that does not embrace the philosophy of restructuring would be cosmetic.
“I believe if there is no restructuring in the amendment whatever they do won’t achieve any purpose,” Sowemimo posited.
He said further that if there were to be a referendum, there must be a document people would decide on and wondered that if people were to be elected into a constituent assembly, how would they be elected and would the process not be monetised?
He added, “I find that the quality of people in terms of representation is not what we used to have, and that’s why I feel that since we have a document, let’s know our problems and do amendments, even if it’s 90 per cent. But the important thing is the philosophy underlying the process; are we embracing restructuring, and if yes, what will it entail?
“So, for me, yes we should have a new constitution; it doesn’t matter to me whether it comes by way of a new constitution entirely or an amendment. The important thing is to ensure that those things agitating the minds of Nigerians are looked into and then who are the people that would debate it. How do we ensure that those carrying out the amendment are reflecting the wishes of the people?”