Thursday, October 22, 2020

A MEMORANDUM FOR THE AMENDMENT AND RESTRUCTURING OF THE NIGERIAN CONSTITUTION AND THE BODY POLITY By Senator Mike Ajegbo

In the wake of the widespread clamour for restructuring, Senator Mike Ajegbo, Chairman Senate Committee on Judiciary and Legal Matters (1999/2003) presents his submission in this hugely enlightening memorandum

The new term in Nigeria Politics is the word “Restructuring”. It is difficult to understand the clamour for Restructuring in Nigeria without a full understanding of the Constitutional Development of the Nigerian nation.

The Northern Nigeria Protectorate and the Southern Nigeria Protectorate in addition to the Lagos colony were amalgamated on 1st January 1914 to become one nation known and called Nigeria.

Nigeria became independent from the British on the 1st of October 1960.

Nigeria got its independence after a long period of colonization which ended with the Lancaster House Constitutional Conference in London in 1957/58.

Nigerian delegates to the deliberations were chosen to represent each of the then 3 Regions i.e. Northern Region, Eastern Region, Western Region and some other representatives based on different criteria.

The agreement that was reached at the Lancaster House Conference was the basis of the 1960 Constitution of the Federal Republic of Nigeria which was the Independence Constitution.

Therefore, this particular Constitution can be deemed as the document that set out the Federating units of Nigeria.

In 1963, Nigeria became a Republic, cutting off Political ties with the United Kingdom.

The major implications were that the President of Nigeria became the Head of State of Nigeria and no longer the Queen of England and also the Federal Supreme Court of Nigeria became the Court of last resort in all cases.

The provision of the 1963 Constitution was the basis used for the creation of the Mid-Western Nigeria from Western Nigeria.

Even at that time, there were agitations in various parts of Nigeria demanding for separate Regions. In the North, it was the Middle Belt movement including the TIV riots and in the East, it was the movement for COR Region.

The Political crises in the Western Region replaced the agitation for a separate Region which crises was fueled by the rivalry between Chief O. Awolowo the leader of the Action Group and the breakaway Chief S. Akintola.

Chief Awolowo as the leader of the Opposition Party was accused and jailed for Treasonable Felony.

His then Deputy and former Premier of Western Nigeria Chief Akintola broke away from the Action Group and formed another Party that entered into an alliance with NPC which was basically Northern Nigeria based Party that was in control of the Federal Government.

Action Group led by Alhaji Adegbenro as Chief  Awolowo was then in prison forged an alliance with NCNC which was largely an Eastern-based party.

The political crises that resulted led to a breakdown of governance in the Region and a declaration of a State of Emergency by the then Federal Government of Nigeria were made in the Western Region.

There was an election into the Western House of Assembly which was marred by irregularities and killings and this was the immediate cause of the January 15, 1966 coup by the military.

This led to the Military takeover of the Political Administration in Nigeria under Major General J.T. Aguyi Ironsi. The Military always operates under a Centralized Command Structure.

The Ironsi administration was not different and promulgated a Decree changing the Constitutional administration of Nigeria which was based on a Federal System to a Unitary System bringing the four regions of the country under the command and control structure of the Federal Government.

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There was no known political figure at that time that supported the truncating of a Federal system for a Unitary system.

Since then, there has been a number of Constitutional Conferences in the attempt to create the best form of Constitution for Nigeria.

A Constitution that created a Presidential system was approved by the Military in 1977 after a Constituent Assembly in which delegates from different parts of the country were nominated into the Assembly by the Military Government.

This 1977 Constitution differed from the earlier Constitutions by creating a Presidential system whereby the President was both the Head of State and the Head of the Executive branch of Government.

This Constitution was very different from all the various Constitutions that had been tried in Nigeria. There were six Colonial Constitutions in 1922,1946,1951,1955,1957/58 and leading to Independence. The ONLY Constitution that was made by Nigerians for Nigeria was the 1963 Republican Constitution. There was another Military interregnum in 1983 which led to a Constituent Assembly being set up in 1988.

This particular Constitution was partly implemented and Governors were elected in the States and also members of the National Assembly.

But it needs to be stated that it is basically the said Constitution followed the same format as the 1977 Constitution. This Constitution was truncated in 1993 with the advent of another military government when the Presidential election was aborted.

In 1995, under General Abacha another Constitutional Conference was set up, this Conference adopted to a large extent the draft Constitution of the 1988 /89 Conference but with some remarkable innovations. It was this Conference that introduced the Concept of 6 Zones.

This Conference recommended a Presidential System with 6 Vice Presidents.  On the demise of a President, the Vice President from his Zone will replace him/her.

In 1998, after the death of General Abacha and General Abdulsalmi assumed the reins of power he set up a committee to review all the Constitutions which ushered in the Civilian Government in 1999.

The present Constitution we have in Nigeria is as a result of that Review.

Therefore, unlike the 1963 Constitution, the 1999 Constitution was not a product of the representative of the people but an inheritance from the Military Government.

Various Ethnic Groups and various Associations in Nigeria have been agitating that various aspects of the Constitution are oppressive and some even feel that the whole Constitution should be abrogated and replaced by a Constitution made by the people.

As a result of the various agitations President Obasanjo had set up a Political Reform Conference in 2007 but the work of this conference never saw the light of the day because of various allegations that President Obasanjo wanted to use the conference to extend his tenure.

In 2014, President Goodluck Jonathan of the PDP in another attempt to assuage feelings set up a Conference to prepare the basis of a new Constitution that will be correctly termed a Constitution made by the people of Nigeria for Nigerians.

At the end of the day, another Government led by General Buhari of the APC won the 2015 elections and discarded the documents prepared by this Conference.

The issue that needs to be addressed is why a substantial part of the Nigeria Body Polity has refused to continue being governed by the present 1979 Constitution as amended.

The major point of difference between the 1960 Independence Constitution and the 1963 Republican Constitution is that under the 1960 Independence Constitution the Queen of England was the Head of State of Nigeria and the Governor-General represented the Queen in Nigeria.

Also, the Joint Committee of the Privy Council was the Court of Final Appeal in all matters arising from Nigeria.

On the other hand, the 1963 Constitution created a Republic and the President of Nigeria became the Head of State of Nigeria and Commander-in-Chief of the Armed forces.

Also, the Federal Supreme Court of Nigeria became the final court of Appeal for all matters arising in Nigeria.

But in both Constitutions, the Federal Government of Nigeria was set up as a Parliamentary System.

The President of the country was the Head of State and Commander-in-Chief of the Armed forces but was only a ceremonial President.

He was a ceremonial President in the sense that the Head of Government known as Prime Minister exercised the Executive Powers of Government together with an elected Cabinet of Parliamentarians.

Both the Prime minister and the Ministers of Government were required to be members of Parliament from the major Political Party or its Allies.

In essence, the Legislature and the Executive were found in one body.

 AREAS OF DISENCHANTMENT WITH THE 1999 CONSTITUTION

  1. Origin of the Constitution
  2. Presidential System
  3. Federal Legislative Powers
  4. Executive Power of the President and Governors
  5. Judiciary
  6. Revenue sharing formula

ORIGIN OF THE CONSTITUTION

Except for the 1963 Republican Constitution which was a Constitution made by Nigerians for Nigerians all the other Constitutions that had been used to govern Nigeria were either influenced by the British or Nigerian Military.

The 1999 Constitution happens to be the worst of it all as there was no Constituent Assembly to give it the semblance of a Democratic Constitution.

The Constitution enshrined those aspects of a Unified System of Government rather than a Federal System.

It was to cure this illness and the growing agitations in the country that President Goodluck Jonathan established a Constitutional Conference in 2014 but the said 2014 Political Conference lacked a democratic basis as membership was by appointment and the views of many lacked that basic democratic foundation.

PRESIDENTIAL SYSTEM

The 1963 Republican Constitution which was a product of a democratic system gave Nigeria a Parliamentary form of Governance which system is a much more diverse and representative System.

The said 1963 Constitution enshrined Regional Constitutions for the 3 Regions in Nigeria and those regions were Northern, Eastern and Western Region.

In 1964 the said 1963 Constitution was used as a basis for the creation of the Mid-Western Nigeria.

The Governance of each region was based on a Parliamentary System with the Premier as the Head of Government and a Governor as the Head of the Region.

The Federal set up was that there was a Prime Minister who was the Head of Government made up of Ministers who were also Parliamentarians and the President was the Head of State and Commander-in-Chief of the Armed Forces of the Federation.

The Prime Minister is normally from the party with a majority in Parliament or a Coalition of more than one party that has a majority in the Parliament who then exercises Executive powers through a cabinet that has representation from party members from different parts of the country.

In the Regions, the Regional cabinet which was formed by the majority party will normally have representation from the party members from different parts of the region.

The implication of a Parliamentary system is that representatives from the various parts of the country are involved in the Executive making decisions for the country also the same goes for the Regions as every part of the Region was involved in the executive decision making for the good governance of the Region.

In the Presidential System that we are presently practising though the cabinet has representatives from the various parts of the country they work for Mr President and are not really in any position whatsoever to influence the decision of the President.

Therefore, in a country of over 200million people and with over 250 ethnic tribes and many languages, one person decides the fate of all.

FEDERAL LEGISLATIVE POWERS

The Federating Units cedes certain powers to the Central Government especially powers in respect of Common Services most of these powers are listed out and contained in the Exclusive Legislative List. Some of these powers are shared with the Federating Units and are spelt out in the con-current Legislative List.

The bulk of the powers are not written out and are known as Residuary Powers and this is for the Federating Units to deal with as they deem fit.

It, therefore, must be understood that the powers ceded to the Central Unit by the Federating Units are only for the common services that affect all parts of the country like Customs matter, Currency, Aviation, Armed forces, Citizenship and such.

There is usually a Federal Police for Federal matters and each Federating Unit has its own police for matters covered under the con-current Legislative List and Residuary List. The Armed Forces has no business whatsoever in the internal affairs of the country.

EXECUTIVE POWERS OF THE PRESIDENT AND GOVERNORS

The basic nature of the Nigerian society cannot afford an executive President as it will lead to dictatorship. In a country of over 200 million people with different regions and ethnic groups different cultures and stages of development it is almost improbable for one man to control the lives of so many without serious friction developing in the society.

By the wordings of the 1999 Constitution which we are operating the Ministers are there to carry out instructions as issued by Mr President and they all serve at his pleasure.

Due to our recent past history of Military rule which is the background to our Constitution the powers of the Federal Government is all-embracing.

The powers of the Federal Government should be limited to Common Services and the Federating Units would be allowed to develop solutions to their own peculiar issues based on their needs and requirements.

On the issue of Presidential system with its shortcomings in a developing economy, it can be cured by having 6 Vice Presidents, one from each Zone with clearly well-defined portfolios in the Constitution.

One of the Vice-Presidents will be from the Zone of Mr President and he will take over in case of the death or incapacity of Mr. President.

JUDICIARY

The Judicial System has been practised under the 1999 Constitution is anathema to a Federal System because it is a Unitary Judiciary.

Under the 1963 Republican Constitution, each Region had its own Judicial set up in the sense that each region was allowed to set up its own High Court and Court of Appeal while the Supreme Court was known as the Federal Supreme Court.

Under a proper Federal System, each state should have its own State High Court, Court of Appeal and Supreme Court to decide on matters arising from the State Constitution and the various laws.

The Federal Supreme Court should be for Federal Constitutional Matters and issues between the Federal Government and the Federating Units and/or between the Federating Units.

In this instance, the Federal High Court, Federal Court of Appeal, Federal Supreme Court will decide on Constitutional and Legal matters affecting more than one state and the Central Unit.

REVENUE SHARING FORMULA

The Revenue Sharing Formula should be based on derivation and monies remitted to the Federal Government based on a percentage of the Revenue derived and generated by a State based on the agreed percentage of the Common Services to be performed by the Federal Government to the responsibilities of the State Governments.

THE WAY FORWARD

Nigeria operates under the Rule of Law and therefore a new Constitution which will be known as the Constitution of the People of Nigeria for Nigerians should to a large extent be fashioned out of the existing and operating Constitution.

The first step will be to amend Section 9 of the existing Constitution to enable the National Assembly to set in motion the processes and procedures for the setting up of what could be referred to as the People’s Constitution.

The amendment should include the following:

  1. Declaring the National Assembly a Constituent Assembly for the purpose of setting up a Federal Constitution for Nigeria.
  2. The National Assembly will still retain the powers to makes laws for the peace, order and good governance of Nigeria during the period of transition when it is sitting as a Constituent Assembly.
  3. The draft of the Federal Constitution will be harmonized by the two Houses and subjected to plebiscite so that the Federal Constitution will be agreed upon by at least a simple majority of the Federation

Units  Constituent Assembly.

The suggestion is that the National Assembly and State Assemblies can turn themselves into Constituent Assemblies temporally for the purpose of fashioning out a new Constitution.

The various State Assemblies will transform into Constituent Assemblies to work out the best format for a new Constitution to govern the relationships of the States within the Zones

Such harmonized Zonal Draft Constitution will be subjected to a plebiscite to be approved by a simple majority in each of the States.

States and part of a State should be given the option to opt-out from any Zone provided that the land area is contiguous and approved by a simple majority of the citizens of that particular state in a referendum.

Region Vs States.

It will be an argument in futility for anyone to advance that States should be abolished.

States should remain with their Executive Powers.

The Six Zones that will be acknowledged in the Constitution will be for Two and only two functions.

To be the Federating Unit so that Revenue Allocation of the Federally generated revenues should be shared equally into 6 parts.

The one for each Zone will then be shared by the States in the Zone in accordance with the Revenue sharing formula agreed by the States in the Zone.

Administration of Common Services agreed to by the States in the Zone

It should be noted that the Administration of the Zone will be a Zonal Council to be chaired by the Chief Executive of each State on a yearly rotation. Also, note that State Assemblies will work together to agree on the Common Services which will be inserted in the Zonal Constitution.

You may wish to note that the concept of this proposal is based on the Zones being the Federating Units in Nigeria and should be so enshrined in the Constitution. The document which is recommended as the working paper for these exercises will be the 1963 FEDERAL AND REGIONAL CONSTITUTIONS.

The above is my submission.

Senator Mike Ajegbo CON

08055790070

majegbo@aol.com

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