Towards The Emergence Of A New Constitution

Paper Presented By Femi Falana SAN At The NBA-AGC2021

INTRODUCTION 

The people of Nigeria were not involved in the processes which culminated in the constitutions promulgated by the colonial regime. Thus, the Lugard Constitution of 1914, Clifford Constitution of 1922, Richards constitution of 1946, Macpherson constitution of 1951 and Lyttleton constitution of 1954 were enacted in London and imposed on Nigerians. In order to protect the interests of the British Government the independence Constitution of 1960 was negotiated between the British colonial regime and the nationalist politicians. Even the much celebrated Republican Constitution of 1963 was a mere amendment of the Independence Constitution.

Hence, the amendment of the Constitution carried out by the first set of parliamentarians were rather cosmetic . Specifically, an elected President became the Head of State to replace the British Monarch who was  Nigeria’s Head of State under the Independence Constitution. The Supreme Court became the final Court of Appeal instead of the British Privy Council. However, the Nigeria Police Force and other instruments of oppression established by the colonial regime were left intact while the post colonial economy was left in the firm grip of imperialism. The 1963 Constitution also  recognised the relative autonomy of the Eastern, Western and Northern regions. Each of the regions had its own Constitutions and managed its own affairs within the neocolonial economic structure. The Midwest region was later carved out of the Western region.

MILITARY CONSTITUTIONS 

Under the pretext that the civilian government could not contain the election violence that broke out in western region in 1964 and the brutal killing of Igbo people in the north the military seized power on January 15, 1966. The coup plotters suspended the Federal Constitution and the Constitutions of the 4 regions (North, West, Midwest and East). The military oligarchy ruled by Decrees signed by the Head of State. Even though  the military dictators claimed to have set up the Federal Military Government it was a unitary government in every material particular. In 1967,  the 4 regions were split into 12 states while military governors were appointed by the Supreme Military Council to govern them. The governors ruled the states by edicts. Regional institutions including universities, radio and television stations were nationalised  by the Federal Military Government.

In 1975, the Murtala Mohammed regime appointed 49 people to draft a Constitution for the 2nd Republic. The Committee was headed by Chief Rotimi Williams SAN while the Constituent Assembly led by Justice Udo Udoma wrote the Constitution. Upon the submission of the Constitution to the regime, General Obasanjo included (a) the National Youth Service Corps Decree 1993; (b) the Public Complaints Commission Act; (c) the National Security Agencies Act; and (d) the Land Use Act. Even though these laws were not part of the Constitution it was provided that they could only be amended like other provisions of the Constitution. It was after the entrenchment of the laws that General Obasanjo enacted  the Constitution (Promulgation) Decree No 102  of 1979. Thus,  the 2nd Republic was operated under  Decree 102 of 1979, otherwise called the 1979 Constitution.

When the military sacked the civilian government again in December 1983 the1979 Constitution was suspended. However,  in preparation for the emergence of civil rule the 1989 Constitution was written by a Constituent Assembly led by Justice Anthony Aniagolu. But due to the annulment of the election won by Bashorun MKO Abiola the 1989 Constitution never came into force. Although General Babangida was forced to step aside his plans to metamorphose from a military dictator to a civilian President did not materialise. Some of the provisions of the 1989 Constitution included the election of part time legislators, immediate resignation from the Parliament by legislators who decamped from one political party to another before the expriation of their tenure, investigation of the unlawful killing of any person within 30 days etc.

In 1999, General Abdulsalami Abubakar repealed the suspended 1979 Constitution and imposed the 1999 Constitution on the nation via the Constitution (Promulgation) Decree No 24 of 1999.  However, the Committee which drafted the 1999 Constitution was headed by Justice Niki Tobi. The 1999 Constitution is largely a replica of the 1979 Constitution. The four laws included in the 1979 Constitution were also entrenched in the 1999 Constitution. But in  restoring democratic rule the military authorities did not return the assets and institutions of state governments as well as the powers which had been taken over by the mlitary regimes.

WE THE PEOPLE….

From the foregoing, it is undoubtedly clear that even though the 1963 Constitution was illegally suspended in 1966 it was never abrogated throughout the era of military rule. Indeed, the decrees which suspended its provisions were repealed in 1979. To that extent, the 1963 Republican Constitution remains the only legitimate Constitution of the Federal Republic of Nigeria. But neither the 1963 nor the 1979 Constitution is  a panacea to the crisis of underdevelopment plaguing the country. No Constitution can work in an atmosphere of impunity. Both the 1st and 2nd republics collapsed due to official impunity. The third republic was aborted by the Ibrahim Babangida military junta due to impunity by the military dictators who annulled the results of the June 12 presidential election won by Bashorun MKO Abiola.  The 4th republic may collapse due to impunity compounded by mismanagement of the economy, insecurity and corruption.

However, the National Assembly will not restore the 1963 Constitution as members of the political class are satisfied with the status quo. The  National Assembly will not jettison the 1999 Constitution.  Indeed, in several decisions the Supreme Court has insisted that the 1999 Constitution is the grundnorm of the Federal Republic of Nigeria. Convinced that the 1999 Constitution has come to stay the legislators have  opted for its  amendment on a regular basis. It is generally agreed that the  claim in the Preamble of the Constitution that it was made and enacted by the Nigerian people is a fiction. There are other false claims in the document. For instance, the Constitution provides for the appointment of the Attorney-General of the Federation, Auditor-General of the Federation, Head of Service of the Federation, Secretary to the Government of the Federation etc. But  these are officers in the public service of the Federal Government as the Constitution provides for similar officers in the States.

Our authority for this submission is section 318 thereof which states that the word “federation”  means the Federal Republic of Nigeria. Since the Federal Republic of Nigeria consists of the Federal Government, Governments of the 36 states, the Federal Capital Territory and the 774 local government councils, there are no officers of the Federation or Federal Republic of Nigeria. The dichotomy between the Federal Government and State Governments is well captured in section 162 (3) of the Constitution which states that “Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly.”

It is pertinent to note that the main disputed area among the political class is whether the Constitution should provide for a presidential or parliamentary system of government or whether we should have strong regional governments and a weak centre. It is common knowledge that some politicians are campaigning for restructuring. But let it be made clear that restructuring cannot be limited to power devolution alone. It must include economic restructuring. For too long, the ruling class have exercised power without responsibility.  This time around, the power to be devolved from the centre to the states must be democraticised. In other words, the people must be empowered to control the affairs of the nation. So, let no one deceive the Nigerian people by talking of restructuring in abstracto.

However, the masses of our people in the north and south, east and west  are demanding for the actualisation of the provisions of the fundamental objectives and directive principles of State Policy embodied in chapter  2 of the Constitution. The chapter provides for participatory democracy, adequate security and welfare for the people,  adequate housing, employment and payment of unemployment benefit for unemployed people,  payment of living minimum wage and pension, right to education at all levels and right to health. Without any fear of contradiction, I wish to submit that the provisions of chapter 2 of the Constitution cannot be realised under a capitalist system. Section 16 of the Constitution which provides that the resources of the nation shall be controlled by the government and be equitably distributed among the people and that the commonwealth shall not be concentrated in the hands of a few people or a group can only be actualized under a socialist government.

I strongly believe that the country needs a new and popular Constitution prepared by the accredited representatives of workers, women, youths, physically challenged people and other interest groups. But a new Constitution can only emerge from the struggle of the Nigerian people through a process that is democratic, inclusive and transparent. The popular struggle of the past had led to the entrenchment of chapters 2 and 4 in the 1999 Constitutions.  Although the provisions of chapter 2 are not justiciable there are laws that have been enacted by the National Assembly to actualise some of the rights. With respect to chapter 4, some Iaws have been enacted against illegal arrest and detention, torture of suspects and extrajudicial killing of citizens while indigent citizens are shall have access  to free legal advice and representation by lawyers in court.

TASK BEFORE THE NBA

In view of the commitment of the Nigerian Bar Association to take the lead this conference should direct the members of the Human Rights Committees of each branch to accompany Chief Magistrates and Judges during the monthly visits to police stations and other detention facilities in the country. The NBA should be prepared to partner with the human rights community with respect to the provision of pro bono services to all victims of human rights abuse in the country. The NBA should pluck up the courage to sanction Attorneys-General who encourage disobedience of court orders and frustrate the payment of damages awarded by courts to victims of human rights abuse. Since Nigerian lawyers support the call for a new Constitution for Nigeria the NBA should embark on consultation with the Nigerian people through its branches that are spread across the 36 states of the Federation.