Can There Be A Case For State Constitutions In Nigeria?

Being a Paper Presented by Gloria Mabeiam Ballason Esq at The Future of Democracy in Nigeria Conference Held at International Conference Centre, University of Ibadan, Ibadan Oyo State Nigeria. Tuesday 8th – Wednesday 9th June, 2021.

PROTOCOLS

Thank you for the privilege of joining in this survivalist discourse at a moment when our dear country is at a crossroad transfixed and wondering how to go.

I believe it is in that sense that several options on what pathway to take to Nigeria’s democracy future are now up on the table. Many have suggested a return to the federalist model in which we can have a style of government that devolves central power into the regions for parity and complementarity of sovereignty. The proponents of this school of thought argue that the agitations for power sharing by the South-West, non-integration by the South-East, economic and political marginalization by the South -South and MiddleBelt will counterbalance the alienation of the majority representation and winner-takes-all regime of the quota system.

This conference asks the question whether a case can be made for State Constitutions in which case governmental structures and political processes are divested in state domains but which should be in conformity with the federal structure of the states and the national government under the supremacy of the Nigerian Constitution. In this prototype, each state will have its own Constitution and so in the case of Nigeria, we should be looking at 36 or 37 State Constitutions including the F.C.T. and one national constitution.

HOW SOME COUNTRIES WITH STATE CONSTITUTIONS HAVE FARED.

On 17 November,1956, a constitution was adopted for the establishment of a framework for the State Government of the India state of Jammu and Kashmir. This state constituted the southern and south-eastern portion of the larger Kashmir region that had and still is the subject of a dispute between India, Pakistan and China since the mid -20th Century . The Constitution came into effect on 26 January 1956 and granted special status to Jammu and Kashmir among Indian states. It was the only state in India to have a separate constitution. Article 370 which was drafted in Part XXI of the Indian Constitution provides that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian Constitution would apply to the State and that the State Assembly could also abrogate the Article 370 altogether, in which case all of Indian Constitution would have applied to the State. Jammu and Kashmir then became an autonomous state with a Head of State (Sadr-i-Riyasat) separate and distinct from the 29 states governed by Governors and the Prime Minister who is the Head of Government.

In 2019, a resolution passed by two-thirds of the two houses of India’s parliament, led to the issuance of a Presidential Order of 5 August,2019 which rescinded and rendered infructuous the autonomy previously granted and made all the provisions of the Indian Constitution applicable to Jammu and Kashmir. A further Order of 6 August,2019 rendered inoperative all clauses in Article 370 save Clause 1. Not done, the Jammu and Kashmir Reorganization Act,2019 divided the state into two union territories – the Union Territory of Jammu and Kashmir and Union Territory of Ladakh .

As it stands, there has been no peace since the abrogation of autonomy and India’s denial of right to self determination as well as its continuous occupation of the Jammu Kashmir territory through employing what many analysts describe as fascist tactics, is deemed a violation of Resolutions 47 and 91 of the UN Security Council. The matter has remained one of the longest standing issues before the United Nations till date.

There is also the Australian model that evolved from six colonies into a Federation. Sections 106 and 107 of the Australian Constitution guarantees the continuing existence of the states and preserves each of their constitutions. The States are however bound by the Australian Constitution and their constitutions are in general, regular pieces of legislation that are subject to amendment or repeal by the State Parliaments in the same way as other legislations. The state constitutions are the source of state parliament’s power and cover the structure and process of the legislature, executive and the judiciary. The Territories on the other hand have no constitution. The Northern Territory and Australian Capital Territory (ACT) were granted self-government by the Common Wealth in 1978 and 1988 respectively with the passage of Commonwealth legislation . These self -government laws are the source of the parliament’s law-making power and are structured similarly to the State and Commonwealth Constitutions. Territories are also enabled to make laws on any matter but where those matters are in conflict with Section 51 of the Commonwealth Law, they are to the extent of the inconsistency, null and void.

As intricate as the Australian model seems, there have been occasions where the Australian Supreme Court have had to judicially delineate powers by upholding the right of parliament to hold the executive to account and declaring that as an art of ‘responsible governance’ . At other times the apex court of Australia upheld the validity of legislation providing for the waiver of privilege by the parliament. At yet another time, the Chapter III rights in the Commonwealth Constitution and the scope of state courts vested with federal jurisdiction had to be defined and the power of State parliament was restricted when it was overreaching the State Courts.

Not even the interactive constitutions of the 50 states of America and the 234-year old national constitution for which Americans laboured at the Philadelphia Convention from 25 May 1787 to 17 September 1787 when it was signed (an onerous four months!) has insulated America, the capital of democracy from woes. For although the reverberating and hope warming preamble reads : ” We the People of the United States,in order to form a more perfect union , establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare ,and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America…” ; America the land of the free and home of the brave, experienced the kind of power struggle common to third world countries and fought hard until it prevailed.

DRAWING THE PARALLELS.

You can almost draw a straight line from Jammu Kashmir to Nigeria’s East or West or Middle Belt. Agitations for redress of injustice are loud and clear across the states and regions of Nigeria with calls for autonomous state and resource control from the Niger Delta, cessation by Biafran agitators, power sharing by the West, devolution of power by the middle belt and all. These hues and cries are circumscribed by the echoing call for restructuring. The people are saying Nigeria as is presently constituted is not delivering value to Nigerians and the north appears to benefit from quota system and majority rule at the detriment of others. The north which appears to be the biggest beneficiary is also asphyxiated by insecurity and is also wailing. Should we, in the circumstances, opt for the States Constitution? I vote in the negative for the following reasons: In many states local governments have become the mini Boys Quarters of State Governors who put in tenants at will or make them sole administrators -squatter volunteers. When there is a show of semblance of elections, the ruling party in these selections muzzle out or annihilate opposition. Even State House of Assemblies have almost become unitary houses. Show me a state where opposition and dissent are absent and I will show you a state where the ruling party in conjunction with state governors ensure only yes men and women of same party hold sway. Take a look also at the appointment of heads of courts in states, the refusal of Governor Inuwa Yahaya to confirm Justice Beatrice Iliya as substantive Chief Judge or the Kebbi case of Justice Asabe Karatu who was shut off from delivering her judgement under Governor Atiku Bagudu’s watch or even the Cross River situation in which it had to take concerted efforts by the Nigeria Bar Association before Governor Ben Ayade swore in Justice Akon Ikpeme as substantive Chief Judge highlights the chilling effect of what could happen when boundless power is on rampage. If those examples do not drive home the point, a poignant example that takes the day is Governor Nasir Elrufai’s monarchical Kaduna State where the Governor decides whose house to knock down, which traditional institutions to abrogate, who should be behind bars and how many civil servants should be at work.

I make the point to say that if we opt for states constitution against the track record of how many state governors have fared, the managerial ethos of constitutional reform will be in opposition with the democratic imperative of checks and balances. The Constitutional structural theory rests on the twin principles of separation of powers and of checks and balances. The first principle requires branches of government to be identifiably discrete. The second assumes that the branches are separate and so concentrates on promoting the checking of each by the others.

As Michael Parenti said in his _The Assassination of Julius Caesar , diluting democratic power with a preponderantly undemocratic mix does not create an admirable balance and stability. In actual practice the diversity of form becomes a subterfuge that allows an appearance of popular participation in order to lend legitimacy to oligarchic dorminance.

WAY FORWARD

But what is the argument on the other side except that national cohesion is sagging, national structures are failing, the leadership is dangerously on its own frolic and the people are left wondering, will the prediction of the 100-year doom of Nigeria become a self-fulfilling prophecy? The journey to statehood requires more than compliance to the 1933 Montevideo convention of permanent population,defined territory, government or capacity to conduct international relations. Although our scorecard is poor on all those counts, it is failing more epically at humanizing governance with empathy, competence, accountability and diversity management. Section 14 (2) b states that the security and welfare of the people shall be the primary purpose of government. Section 17 (1) of the 1999 Constitution demands that the state social order be founded on the ideals of freedom, equality and justice. Section 17 (2) (C ) makes it imperative with for governmental actions to be humane. But because there has been a condoned norm of obeying the Constitution in breach rather than in compliance, a flip argument to the implementation of chapter two of the constitution where sections 14 and 17 are found is that the provisions are non- justiciable. These non-justiciability arguments have in practice, now moved into and corrupted Chapter IV of the constitution. Today the one who is deemed to have rights is the one with might and the rest of us have been left at their mercy. Even the right to express pain is shut down digitally and analogously – (no thanks to the twitter ban).

Nigerian leaders must normalize dissent, diverse perspectives and accountability to the rule of law. And so as we converse on this hallowed ground which came into existence as a citadel of learning 73 years ago and more than a decade before our country’s independence, we must draw inspiration from how a College of the University of London located in Nigeria’s West, evolved into independence, made Sir Abubakar Tafawa Balewa from the north its first Chancellor, Prof. Onwuka Dike from the East its first Vice Chancellor and has retained that diversity while keeping a steady lead as one of the most prestigious universities in the world. We must also take heed to the courage of our host, His Excellency Engineer Seyi Makinde, FNSE who at a time the centre is coming unhinged, has gathered us in this ancient city to think through and hazard a future for our country’s democracy. Your Excellencies, distinguished guests, there are many broken places in our country but it has fallen to us to rise and fight strong for a just and united Nigeria. We cannot afford to sublet that duty so let us take the gauntlet and make hay while the sun still shines. I thank you all for listening.