Restructuring and Chapter II of the Constitution

The Horizon By Kayode Komolafe  kayode.komolafe@thisdaylive.com 0805 500 1974

It is an important step in the restructuring debate when proponents call on President Muhammadu Buhari to seize the moment and give leadership in the process. At least, there has been a suggestion that the President should set up a commission on restructuring. In a way, that seems to be an expression of lack of confidence in the National Assembly where the business of constitutional amendment is already afoot. This is because on his return from his medical trip, Buhari directed those interested in restructuring to take their case to the National Assembly. The divergent approaches to solving the problem should interest the Senate President Bukola Saraki and the Speaker of the House of Representatives, Hon. Yakubu Dogara.

After all, restructuring is ultimately a constitutional matter. While the proponents of restructuring are pushing for a new constitutional entirely to be legitimated by a referendum, the National Assembly seems comfortable to be addressing the extant issues of the Nigerian federalism by means of amendments of the 1999 Constitution. The huge deficit in both perspectives is that the focus is almost exclusively on the vertical issues of Nigerian federalism – devolution of powers (to the states or regions as the case may be); fiscal federalism, resource control, state police, contents of the legislative lists etc. There is hardly any corresponding passionate argument on the horizontal issues of the socio-economic rights richly embodied in the Chapter II of the Constitution. How many proponents of restructuring are making the case for socio-economic rights to be justiciable in their proposed Constitution of “True Federalism.” Why is there not so much agitation for the socio-economic empowerment of the people guaranteed constitutionally as proponents of restructuring push for greater powers for governors and state and regional parliaments? It is simply because making Chapter II work can only be a pan-Nigerian struggle and not an ethnic, regional or religious effort.

So when proponents of restructuring dismiss the 1999 Constitution as one imposed by the military they are silent on the remarkably humane content of Chapter II. They ignore the material power that Chapter gives to the people while they hanker after the powers of governors relative to that of the President and the powers of state/regional parliaments relative to those of the National Assembly. Even if the British imposed the welfare and humane content embodied in the Chapter II of the 1999 on Nigeria at their departure in 1960, it would be worthwhile for the working people of Nigeria to defend those provisions called the “Fundamental Objectives and Directive Principles of State Policy.” You don’t need any referendum to implement the policies of access to basic education, primary healthcare, social housing, food security, mass transit, water, sanitation etc. in Chapter II.

What is not being said in this debate is that merely redrawing the political map of Nigeria by means of a restructuring legitimised by a referendum does not on its own provide the magic wand for the achievement of the great objectives encapsulated in Chapter II. It requires massive political economy efforts including competent and modern economic management to realise those objectives regardless of the structure that may be finally agreed upon by the ethnic and regional champions. Otherwise, the real marginalisation will persist, that is the socio-economic marginalisation of the poor who constitute the overwhelming majority by the tiny minority of the economic and political elite. The poor and the elite alike belong to all ethnic groups, regions and religions. This is the yet-to-be- unanswered class question in the restructuring debate.

It is important to reflect deeply on the interplay of forces between democracy and federalism in the Nigerian context. Politicians and their publicists talk so much about “dividends of democracy”; yet the meaning of the phrase has become imprecise. Depending on who is engaging in propaganda, the meaning could range from the construction of an expressway to the filling of potholes on a road built 40 years ago. The dividend could also be massive waterworks providing millions of litres of water a day to some communities or simply the construction of boreholes. Similarly, there is a lot of imprecision about the benefits of restructuring as a democratic and federalist proposition.

However, those who at least still harbour some social democratic convictions should insist that the gains of democracy should not be trivialised or perverted. For the real dividend of democracy is freedom including freedom from poverty, disease and ignorance. Therefore, we cannot seriously talk of dividends of democracy in a social order in which the basic human rights are not protected.

It must be emphasised that these rights include the socio-economic rights. So when next a politician tells you his story about “dividends of democracy”, steer away the conversation from propaganda and ask him or her pointedly what he or she has done in terms of policy execution, articulation or legislation to ensure that the socio-economic rights of the people are adequately protected. The struggle for the protection of basic social economic rights guaranteed in the constitution is a legitimate struggle ultimately towards the inauguration of a humane social order in Nigeria.

The proponents of restructuring argue that “true federalism” would make Nigeria more democratic. But their idea of democracy does not envisage the social democracy guaranteed in Chapter II. It is the duty of lovers of genuine democracy and anti-poverty activists to stress the centrality of socio-economic rights to a “true federalism.” A few years back, this reporter made this point on this page when an anti- poverty bill was proposed in the House of Representatives. The bill was aimed at empowering the citizens to sue government officials for failing to provide basic needs in education, healthcare, security, water etc. These are the issues that should be raised with strident voices in the present conversation about Nigeria’s constitutional future. Of course, the social Darwinists in our midst (and some proponents of restructuring are among given their ideological background) would jeer at such a proposition and dismiss it as “utopian”.

The state and society do not owe anybody a living in their limited comprehension of the inherent contradictions in this inhumane social order. To those with this philosophical bent, socio-economic life is all about competition; those who cannot compete may as well disappear from the face of the earth. The authors of austerity budgets and theoreticians of Structural Adjustment Programmes (SAP) abhor social spending. By the way, economic policies in the over 30 years in this country have been consistently ideological mutants of SAP. However, the fact they often ignore is that if the resources lost to massive treasury looting, corruption, leakages and other forms of economic crimes are applied to social welfare programmes, poverty will be reduced and society will be safer.

Inequality is not only regional or ethnic. The primary question is about social inequality. Even in the metropolis of capitalism, theoreticians are having a rethink about social inequality. Nobel Laureate in economics, Professor Joseph Stiglitz, once argued that when policies bridge gaps created by social inequality the economy will grow better. The policy process in favour of people’s welfare would be enhanced when the basic law of the land backs it up. That is why those who are not outraged that more than 13 million children are out of school or that thousands die yearly in remote villages because of lack of access to basic medical care that could cost less than N1, 000 should be reminded that there is a Chapter II in the constitution. It is part of the basic law of this country.

Millions of Nigerians are denied socio-economic rights that are fully guaranteed as “Fundamental Objectives and Directive Principles” of policy in Chapter II of the 1999 Constitution that is currently under review. However, the weak point in the constitutional provision which those who are cynical about social justice always exploit is that these socio-economic rights are not “justiciable”. A six-year old citizen who is denied primary education cannot go court to enforce his socio-economic right to education.

That has been the obstacle to the advancement of the frontier of this aspect of human freedom in Nigeria. The National Assembly could make their process of constitutional amendment relevant by removing the obstacle in the way of the enforcement of socio-economic rights. The Senate and the House of Representatives should take the initiative of advancing this restructuring debate by deepening the socio-economic rights in the constitution. If the National Assembly toes this line, it would be making a significant contribution towards building social democracy. It is when socio-economic rights are made justiciable that democracy in this land would mean more than calling on the people periodically to queue up to vote for competing candidates in elections.

To be sure, there is no illusion here that the poor will have a better deal in a selfish society by merely amending the constitution to make socio-economic rights justiciable. It would take a greater battle to be waged against the predominant ideology of governance that is opposed to government’s investment in welfare programmes. It takes a genuinely anti-poverty president or governor to focus more on those policies that would democratise access to basic needs rather engaging in propaganda of executing “projects” all over the place. For instance, more than four years ago a civil society organisation, the Socio-Economic Right Accountability Project (SERAP secured a judgment against the federal government in ECOWAS on the child education.

The court upheld the right of child to education; but the government has treated the judgment with contempt while not disputing the jurisdiction of the court. As the people’s lawyer, Femi Falana, often reminds his compatriots, even the idea of justiciability in the present situation should be tested.

For instance, the constitution guarantees right to life and that of free movement. But lives are being lost daily on scandalous roads including the so-called expressways because of the social irresponsibility of governments at all levels that refuse to fix these roads. There is constitutional right to life yet thousands of children are dying of hunger and preventable diseases. Yet all what our bourgeois lawyers can tell us is that the citizens who use these hazardous roads and starving children cannot go to court because the rights involved in these instance are not “justiciable”.

Hence, in several public interest cases, Falana has gone to court to test the justiciability of the rights. Such advocacy should be embraced by all those committed to making the people reap the real dividends of democracy.

Although poverty might not be merely legislated out of this land; yet the law could be employed as a weapon in the important anti-poverty war. Devolution of power to states or regions and resource control by governors would not automatically eradicate poverty. The structure of poverty plaguing this land should also interest the advocates of restructuring.