Why Nigeria Needs Restructuring (5)

By Mike Ozekhome SAN

Introduction

Imperative of structural reform: How do we reform structurally? A brand new or an amended Constitution? (continues) The preamble to the 1999 Constitution sheds light on how the entire Constitution should be construed.

The Constitution is for the promotion of good governance and welfare of all persons in Nigeria, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of Nigerians. I agree with the views of the mythic that there was never a time Nigerians gathered to fashion the 1999 Constitution.

The 1999 Constitution was promulgated by the Military and since it came into force, the people through their democratically elected lawmakers have not abolished or suspended the operation of the Constitution. What the people have done are piecemeal amendments. By usage, however, the people have adopted the ideas in the 1999 Constitution.

Thus, it is safe to submit that the expression “we the people” is a reality. In analysing this phrase “we the people’’ it will be necessary to have an amplified and microscopic view of the component words of the phrase. In doing justice to them it will be proper to begin from the first word in the phrase viz: WE: The word “WE” is a pronoun that is used to denote one self and another or others as the case may be. This therefore implies that for the word “WE” is referring to not just a person but a group of persons who are most likely in agreement and having the same motive.

Anything other than this will amount to the misapplication of the pronoun “WE”. This analysis also implies that wherever the pronoun “WE” is used, it connotes that the word emanated from the collective ideology of a group of people.

Conversely, the application of the word “we” in the preamble of the Nigerian constitution connotes that the constitution is a document that emanated from the Nigerian people and that even though every Nigerian did not directly contribute to the making of the constitution, a vast percentage of the Nigerian populace, through their representatives, was involved. Even though this position has so much criticisms, this is the general view of the word “WE”. THE PEOPLE: Whenever the phrase THE PEOPLE comes to mind, another thought that follows is that, a group of persons are involved.

The phrase which connotes that a group of people are involved, is also used to refer to a given set of persons who share the same ideology. The implication of this phrase in the preamble of the 1999 constitution of the Federal Republic of Nigeria and other democratic states of the world is that, the Constitution is for the people, (i.e) the Constitution, having a root in the people, is formatted by the people to be a standard of conduct for the people.

This is what is meant by the phrase THE PEOPLE. This in another hand will also imply that, only the particular people that were referred to, are the people who have business to do with the subject in question.The tendency to concentrate power in the chief executive, while tenable in advanced countries with all the institutionalized means of checking dictatorship makes the system vulnerable in an African setting. Thus, any system that reinforces concentration of power in one person will provide fertile ground for breeding dictatorship.

One of “the perils” of presidentialism is political gridlock resulting from competing claims for legitimacy by the President and the Legislature which inevitably slows down governance process.

This serves as another factor that supports a re-consideration of presidential system in Nigeria. No doubt, the separation of power provided in the Constitution is to curb the tendency of tyranny and to reduce the work load of one-arm of government. The expectations of the Constitution makers are for cooperation between the three arms of government. However, the expectation turns to be a mirage when the relationship between the executive and the legislature is frosty. According to Maman & Dahiru, this can make or mar democracy.

The relationship between the two arms of government has impacts on democracy as a system of governance. It can facilitate and deepen democracy from which the nation can benefit immensely. A frosty relationship on the other hand, can lead to slow and even at times bad governance.

The struggle between the 8th National Assembly and the executive arm almost degenerated to superiority contest. With regards to cordial relationship between legislature and the executive, the parliamentary system has this enduring attribute.

This is because of the fusion of both. As a result, it will not be difficult for the legislators to explain clearly government policies because the interface between the executive and the legislature will make them to be on the same page.

Thus, the switch to the parliamentary system will not only trim the government but also cure the ills of dissipation of energy by the executive and the legislature on mundane issues. In spite of the alluring attributes of the parliamentary system, one cannot dismiss is fundamental weaknesses.

One of such defects is that the government is not as strong as expected. The government can be brought down within days through a vote of no confidence in the parliament which is regarded as the crown jewel of parliamentary democracy. It is believed that such flexibility will not augur well in a polity with no strong sense of nationhood like Nigeria.

Structural reform through a new Constitution

Complaints about the federal structure go as far back to the pre-independence period, when minority groups felt dominated by majority groups.

The Willink’s Minority Commission of 1957, which looked into the matter, recommended the inclusion of a bill of rights in the Independence Constitution, to guarantee basic fundamental rights; rather than creating states for minority groups. But by 1963 the carving up of the country had begun, and eventually by 1 October 1996 there were 36 states. The creation of states grants access to public offices and infrastructure for local elites. It also creates new majority and minority groups in the new states.

Unviable states have proliferated, dependent on the common pool revenues and unable to fund their bureaucracies. Scholars have attentively stated that the fiscal arrangement, especially the formula for sharing the common pool account, is not an incentive for states to produce revenue.

States angle to get more revenue share from the central pool rather than generate revenue within their territories. State governors make the complain that the share of revenue that goes to the national government is too large, making competition for offices at the center too intense. They call for revision to grant more revenue to the states.

Some of the governors also call for more responsibilities, to get access to ways of generating revenue. Some governors believe that decentralization, when extended to policing, would also improve security. In not too far back, everything in the political space of Nigeria is fraught with some damning or potentially disturbing undertones which keep the citizenry in perpetual frenzy. Our case is worsened by the fervency and maddening frequency of messages of doom, conflagration, pestilence, and all sorts of conspiracy theories and morbid predictions churned out on the ubiquitous social media networks.

If it were possible to do a holistic national diagnostic on all the estimated 215 million Nigerians within a space of 48 hours that it took the latest special presidential convention of the ruling political party, the barometer would have crashed into nether regions, making our laboratory technicians collapse in bewilderment.

Such is the weight of our fears and follies that we continually anticipate the catastrophic, even when we look up to the Supreme Being for the miracle of surviving another year. Yet, our leaders continue to act and speak as if they are in control of the very air we breathe, and thus have the capacity to moderate the unknown or mitigate the frightening.

The way forward for an enduring political structure

It is worthy of note that since the 1999 Constitution came into force, attempts have been made by previous administrations to remedy the situation. Two national (Constitutional) conferences have at different times been held unsuccessfully.

The first was by the Obasanjo administration in 2005 tagged the National Political Reform Conference; and the second was by the Jonathan administration in 2014, simply known as the 2014 National Conference. I was a participant at both Conferences, including the Vision 2009 Conference.

Attempts have also been made (and continue to be made) to amend the Constitution. Some of the amendments were successful and some unsuccessful. In 2017 alone, 32 new amendments to the Constitution were proposed by Senate. Only 5 succeeded at the end of the day. Till date, there are still various Bills pending before the National Assembly for amendment to different provisions of the Constitution.

Two options are available

As a way forward, two options are available to us to remedy the defects of the 1999 Constitution. The first option is to continue to amend the Constitution relying on the amendment clause in the 1999 Constitution.

This option has its own challenges because the military after handing down the Constitution made it so rigid to amend, to the extent that getting an amendment is almost as difficult as getting a new Constitution. Despite its obvious shortcomings, this option is ever more appealing to those at the corridors of power because it gives them room to manipulate and promote their selfish interests. No party in power wants to hear about the idea of a new Constitution because they are afraid of losing their existing positions.

For instance, the number one item on the APC manifesto was the convocation of a Sovereign National Conference to fashion a new Constitution for Nigeria; but since they came to power, they have resisted every discussion on that. The second option is to jettison the Constitution completely in favour of a new one. I am more in agreement with this option.

In his book ‘Forms of Constitution Making and Theories of Democracy’, Andrew Arato identified five different mechanisms of making a new Constitution in modern times: they are (1) through the Constitutional convention, (2) the sovereign constituent assembly, (3) the normal legislature, (4) the executive, and (5) an evolutionary process.

On his own part, Schmitt, C, in his book ‘Constitutional Theory, insists that for the Constitutional-making process to be considered to be fully democratic, it must pass through five stages. According to him, all previously constituted authorities must first be dissolved, followed by a popularly elected or acclaimed assembly with a sovereign power. The assembly then begins to function as the government on a provisional basis. Next, a new Constitution is drafted and offered to the people to be ratified in a national, popular referendum.

As soon as the draft Constitution is finally ratified, the constituent assembly will be dissolved and a new government will be duly formed under the new Constitution.

(To be concluded next week).

And this

Crack your ribs

“I don finally hear Goliath side of the story.

“Dem never shout make WAR START, David rush throw am stone”. David cheated, e nor good ehn, abi shey e good?” – Anonymous.

Thought for the week

“Let’s form proactive synergy restructuring teams.”

(Scott Adams).

Last line

God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Chief Mike Ozekhome, SAN, OFR, FCIArb., LL.M, Ph.D, LL.D. kindly, come with me to next week’s exciting dissertation.