1999 Constitution as ‘Enemy of Progress’

With the campaign for #BringBack1963Constitution gaining momentum, how many Nigerians have bothered to read the document? Never mind. In Nigeria, it doesn’t matter. Just repeat what you hear people say and you would be fine. But if you actually go through the 1963 constitution in line with the ferocious campaign for “restructuring”, the part that easily stands out is section 140 (1) which stipulated derivation payment of 50% to the region where minerals are mined. Take away that section and you will wonder what is divine about that constitution. Then take away oil completely from the Nigerian equation and the cries for “restructuring” will mellow down.

That is why I suspect that the campaign for restructuring is a political game for some people — aimed at hitting back at the north for being “parasites on our oil”. And that is why no northerner of note supports the campaign. Listen to Gen. Ibrahim Babangida and Alhaji Atiku Abubakar closely and you will notice that their definition of “restructuring” has nothing to do with a return to 50% derivation. Conversely, if the oil belonged to the north, it is northerners that would be demanding “restructuring” and labelling southerners as “parasites on our oil”. After all, northerners also love to talk about “our agriculture” from time to time. Politics, damned!

In my previous article, This Thing Called ‘1999 Constitution’, I pursued the argument that contrary to the claim that the military wrote the current constitution, it is strikingly a replica of the 1979 constitution, debated upon and produced by an elected Constituent Assembly made of Nigerians (when agitators demand a constitution “written by Nigerians”, was our constitution written by Togolese?) There were indeed complaints that the military “smuggled” 19 items, including the Land Use Act (which, funny enough, favours the states) and the NYSC Act, into the 1979 constitution, but there were hundreds of provisions that were not contraband. Just saying.

Chief Obafemi Awolowo, who declined to serve on the constitution drafting committee in 1975 over matters of principle, was a well-known “federalist”. But he did not reject the 1979 constitution. Rather, he decided to surrender himself to it, to constructively engage with it and to make the best of it. Although he did not win the 1979 presidential election, the states governed by the UPN, his party, implemented his ideals of free education and free healthcare — and, lest I forget, good governance. Alhaji Lateef Jakande, the governor of Lagos state, was the shining star. I think UPN governors generally did well under the “military” constitution — in spite of the “smuggling” saga.

We now shift attention to the 1999 constitution — the latest stumbling block to Nigeria’s development, according to many legal and political experts. How many Nigerians have really spent time to study the document? Never mind. We have been told it is a useless constitution, so why bother to read it? Regardless, under Chapter II of the damned constitution, section 8 says government shall provide (a) free, compulsory and universal primary education (b) free secondary education (c) free university education and (d) free adult literacy programme. It also says, in section 14, that Nigeria “shall be a State based on the principles of democracy and social justice”.

To avoid the lopsided appointments being made by President Muhammadu Buhari since he came to power in 2015, sub-section 14 (3) mandates the federal government to be fair to all sections of the country in the composition of agencies, to promote “unity” and command “national loyalty”, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic groups in government. That is the constitution we hate so much and seek to destroy. Lawyers say Chapter II is not “justiceable” (that is, courts can’t enforce it). Why not seek an amendment to make it justiceable? Why re-invent the wheel? Why write an entirely new constitution?

Mr. Femi Falana, human rights lawyer, once pointed out that under the same 1999 constitution, railway is on the exclusive list — but Lagos state is building a rail line from Badagry to Marina. Rivers state has built a monorail. Heavens are yet to fall. Aviation is also on the exclusive list. Yet states are building or have built airports. Gombe, Anambra, Delta, Nasarawa and Akwa Ibom states are ready examples here. Nobody has gone to jail for that. Power is on the exclusive list. Lagos, Akwa Ibom and Rivers have built or are building power plants — under the same “unitary” constitution! Excuses are the easiest thing to give in this world when all you want to play is politics.

I have thoroughly read the 1999 constitution and I have seen nothing in it preventing states from forming “regional” alliances to promote common interests. The last time I did some research, I found out that south-west states have O’dua Investment Ltd as well as the Dawn Commission. Nobody has died. South-south states have BRACED Commission. Nobody stopped them. It is even more exciting to me that Lagos and Kebbi states, poles apart, have co-operated on LAKE Rice production — in the same country where we say we can’t make progress until the constitution is thrown into the lake of fire! Some states are co-operating and making progress while others are making excuses.

The 1999 constitution, we are told, encourages corruption because governors, deputy governors, presidents and vice-presidents are accorded immunity. But you know what? Sections 143 and 188 of the “worthless” constitution empower the legislature to impeach them for corruption. Are the lawmakers doing their job? Should we blame the constitution if they don’t? In truth, ministers, commissioners and ex-governors, ex-deputy governors, ex-presidents and ex-vice-presidents do not enjoy any immunity, but how many of them have gone to jail for corruption? We need the 1963 constitution to jail them? We must blame the law for every failing, isn’t it?

Meanwhile, the “worthless” constitution stipulates that oil-producing states shall receive “not less than 13% derivation”. That means it can even be up to 100%. Not even the 1963 constitution gave such a blank cheque! The National Assembly can actually make a law taking derivation above 13%. But it may not happen because in revenue sharing, every extra percentage gained by an oil state is a loss to the rest. Many states will naturally oppose increasing it. And I am not talking about the north — the usual suspects — but even Ekiti, Osun, Enugu and Ebonyi lawmakers may not be well disposed to it. We saw how Cross River and Akwa Ibom fought in court over the issue of littoral states.

Sadly, the essence of Nigeria has been reduced to oil, hence the unending threat of “restructuring”. All discussions start and end with oil. But will oil boom last forever? Who still builds the future on oil? Even the viability of states is often analysed solely on oil revenue. Yet all 36 states can be viable if the governors would use their brains properly. There is nothing in the constitution compelling states to depend on federation allocation. In 1999, over 90% of Lagos revenue was from allocation. Using his brains, Asiwaju Bola Tinubu, as governor, reduced dependency to 50% within eight years. Today, it is down to 30%. And, if I may point this out, this is under the same “military” constitution!

Ironically, I have my own issues with the 1999 constitution which I have highlighted in the past. I am certainly not opposed to restructuring. I have written many times highlighting my own thoughts on this. I sympathise with genuine advocates of restructuring who are not motivated by politics and who have no hidden agenda. They may have an honest desire to see a better organised Nigeria. But I still insist that there are millions of untapped opportunities contained in the “worthless” 1999 constitution. There is no perfect constitution anywhere in the world — that is why there is always room for amendment. It is always a work in progress.

Most critically, there is always a big space for good governance, which cannot be decreed by any constitution. Proponents of a new constitution must recognise that it is not a magic wand. Nigeria is about the only country in the world blaming the constitution for its underdevelopment — rather than confronting the ineptitude and wickedness of their leaders at all levels. Rwanda and Cote d’Ivoire survived ethnic violence and are making tremendous progress through good leadership. Hong Kong, Singapore, South Korea and Taiwan all became developed through quality leadership. But in Nigeria, we blame the constitution for everything that is wrong with us.

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AND FOUR OTHER THINGS

NOT YET UHURU
The Supreme Court of Kenya has swiftly passed judgment on the 2017 presidential election and annulled the victory of President Uhuru Kenyatta. I am so ashamed of the Nigerian judiciary. A senior lawyer told me on Friday: “There was no theory of ‘substantial compliance’ to cover up electoral fraud, no unending motions by respondents’ counsel to keep the beneficiaries of electoral fraud in office for three years, and no unnecessary adjournments by the court. The petition was filed on August 18, 2017. Judgment was delivered on September 1, 2017. Petition was filed, heard and determined within two weeks!” Nigeria is always a bad example. Shame.

CHARLY BOY SHOW
Mrs Diezani Alison-Madueke, former minister of petroleum resources, must be enjoying the Charly Boy Show. The multi-talented entertainer recently led a protest to the headquarters of EFCC in Abuja seeking the repatriation of the former minister from the UK to face trial in Nigeria. She could not have prayed for a better supporter! I wish the Charly Boy group was around in 2010 to agitate for the repatriation of Chief James Ibori, former governor of Delta state, from UK to Nigeria for trial. Unfortunately, Ibori was not that lucky: he was tried and jailed in the UK. If he had not fled Nigeria then, the courts would still be adjourning his trial till tomorrow. Comedy.

CAGING KANU
Mazi Nnamdi Kanu, the Supreme Leader of Biafra, has become a fly on the balls of the federal government. Having been detained against court orders for nearly two years, he was finally released on bail in April 2017 under tough conditions. Now that he has apparently violated those conditions, federal government is back in court to get the bail quashed so that he can be re-arrested. The government wants to stamp its feet and show that nobody is above the law (apart from the Arewa youth leaders, I think) but re-arresting Kanu will only make him more popular among his followers and worsen the political tension in the land. What then? Chill.

‘HATE SPEECH’
The military is monitoring social media accounts of Nigerians for comments that could be “anti-government, anti-military or anti-security”, according to Major General John Enenche, director of defence information. He said the measure became necessary “in the wake of hate speeches and comments threatening Nigeria’s unity”. I am against hate speech and want perpetrators brought to book as it obtains in advanced countries, but this is a police matter to be treated in a court of law. As usual, Nigeria has a way of perverting whatever it copies from other countries. Makers of speeches that clearly promote ethnic and religious hate should be tried in a civil court. Order!