Constitution Review Must be Holistic and Unfettered

The Constitution is the heart and soul of any nation, and it is what binds the people together. Legal pundits and Nigeria’s Apex Court have driven home this point in the past few decades, with particular reface to the present Constitution which came into effect in 1999. One of the criticisms of the 1999 Constitution, is that it was foisted on Nigerians by the Military. However, that alone is not the Constitution’s only defect, as in the past two decades, there have been several efforts by National Conferences and the Nigerian Legislature to review and amend the Constitution, to properly reflect the nation’s diversity and complexities. Have these attempts yielded any tangible results, or cured the palpable defects in the Constitution? It doesn’t seem so. Dele Adesina, SAN and Sebastine Hon, SAN give a comprehensive analysis of how Nigerians can give themselves a new and workable Constitution, in this Discourse

The 1999 Constitution of Nigeria: From Hypothesis to Reality

Dele Adesina, SAN

Background

The Senate of the Federal Republic of Nigeria has set up a 56 Member Constitution Reviewing Committee under the leadership of the Deputy Senate President, Senator Ovie Omo-Agege, with a view to embarking on yet another round of amendments of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The areas of focus according to publication on this subject-matter include, but are not limited to, devolution of powers, State creation, the Nigerian Police and Nigerian Security Architecture, judicial reform, electoral reform, local government structure, public revenue, federal structure and fiscal federalism, revenue allocation, the socio-economic and cultural rights, immunity, indigene-ship and the National Assembly. The Committee has therefore, called for memoranda and/or proposals for further alteration of the Constitution from the civil society organisations, professional bodies, executive and judicial bodies, and the general public.

According to the Deputy Senate President, the process shall not only be all inclusive, but the Committee will guarantee full participation of Nigerians. The Report of the Constitution Reviewing Committee according to the publication, is expected to be presented to the Senate at a plenary session in the first quarter of 2021. The Committee was inaugurated in February 12, 2020 by the President of the Senate, Senator Ahmad Lawan. As at the time of writing this essay, it has been reported that the Committee has not only received 68 memos on the proposed amendment, but also, that due to sustained pressure to extend the closing date of submission of memorandum, the Committee has extended the closing date for submission of memoranda to September 18, 2020.

Let me highlight two issues arising from the publications, immediately. First, the clamour for extension of the closing date for submission of memorandum in spite of the huge number that have already been submitted, is indicative of the enormous interest that the exercise will generate among Nigerians. Secondly, the expansive areas in focus as enumerated by the Committee, suggest that the amendment is going to be far-reaching and will touch several sections of the Constitution. The purpose of this write up is to commend the initiative of the Senate, for finding it worthy to carry out what promises to be a sweeping re-examination, re-assessment and re-consideration of the 1999 Constitution.

However, this is a restrained commendation, in view of the observations, suggestions and recommendations I intend to make in this paper for the consideration of the Constitution Reviewing Committee, the Senate, and indeed, the general public.

1999 Constitution: ‘A Fraud’

First, it is to be recalled that we have successfully carried out four Amendments through 1st, 2nd, 3rd and 4th Alteration exercises. Several sections of the Constitution were altered in the course of the four exercises, all these within approximately a period of 21 years of the existence and operation of the Constitution. The question is, if we find it desirable to embark on another exercise as profound and expansive as the one being contemplated here, whether it is not far better and more desirable to think about a holistic replacement of the 1999 Constitution?

Second, I noted with satisfaction that some of the issues scheduled to be considered in the review exercise constitute fundamental and existential issues for Nigeria as a safe and secure nation, as a Federation, and lastly as a successful Constitutional Democracy. I am referring here to such items as devolution of powers, Federal Structure and true Federalism, the Nigeria Police and Nigerian Security Architecture, comprehensive Judicial Reform, Local Government autonomy and the National Assembly itself. Once these foundational issues are going to form the cornerstone of this review which has been promised to be all-inclusive and fully participatory, the question is whether it is not better and preferable to garner the thoughts, feelings, visions and aspirations of the people, with the goal of embarking on the process of making a new Constitution for Nigeria?

Third, in the words of the Supreme Court: “the Constitution is the heart and soul of the people. That explains why the Constitution commences (with the word) ‘We the people…’ all provisions in the Constitution were put in by the accredited representatives of the people.” (See Ugba v Suswam (2014) All FWLR [Pt. 748] page 825 at 863).

Disagreeing with the second part of the above quotation, my Learned Brother Silk and Constitutional Law expert, S.T. Hon, SAN, had this to say in his book titled ‘Constitutional Law and Migration Law’: “there is no doubt that the 1999 Constitution was enacted by the military. That the Apex Court merely imputed this exercise to the Nigerian people”.

Many Nigerians including erudite Constitutional Law Lawyers have expressed serious reservation about the process leading to the making of the 1999 Constitution, and the resultant lack of popular acceptability occasioned by the process of its making. For instance, Chief Rotimi Williams, SAN, a foremost Constitutional Law Lawyer described the 1999 Constitution as a “document that tells lie against itself.” Professor Itse Sagay, SAN, categorically described the Constitution as a “fraud.” The erudite Constitutional Law Lawyer and a foremost Professor of Law, Professor Ben Nwabueze, SAN, described the Constitution as an “illogicality”. That the 1999 Constitution is a “Unitary Constitution for a Federal System of Government.”

The Constitution was described as a fraud and a document that lies against itself at a Seminar on the new Constitution organised by the Nigerian Bar Association, Ikeja Branch, on the 18th of June, 1999, because the Constitution purportedly stated in its opening recital that “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution.” Since the enactment of the 1999 Constitution, the question has been asked repeatedly, where and when did that resolution take place? How did the people of the Federal Republic of Nigeria arrive at that firm and solid resolution purportedly expressed in the recital to the 1999 Constitution? It must be recalled that the 1999 Constitution of the Federal Republic of Nigeria was midwifed by the then Military Government of General Abdulsalam Abubakar, GCFR, pursuant to the promulgation of the Constitution of the Federal Republic of Nigeria Decree No. 24 of 1999. The question is whether Decree No. 24 of 1999 can take the place of a referendum by the people in the making of a people’s Constitution, recognising that the ultimate sovereignty lies with the people?

Fourth, in the case of Attorney-General of Abia State v Attorney-General of the Federation, the Supreme Court stated the meaning and scope of Federalism in the following words: “Federalism as a legal concept generally connotes an association of States formed for certain common purposes, but the State retains a large measure of their original independence or autonomy. It is the co-ordinate relationship of power between the individual States and the National Government, which is at the centre. Federalism as a viable concept of organising a pluralistic society such as Nigeria for governance, does not encourage so much concentration of power in the centre which is the Federal Government. In federalism, the component States do not play the role of errand boys.” The point was also made by the Supreme Court in Attorney-General of Lagos State v Attorney- General of the Federation, that each Government in a Federation “exists not as an appendage of another Government, but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction from another Government.” None of these essential characteristics of a true Federalism, can be said to exist in Nigerian in real and practical terms.

I am fully persuaded by the opinion of Professor Ben Nwabueze, SAN, that “one single Constitution for all the governments involved both Federal and State in a Federation, is a manifest contradiction.” For instance, in 1960, we had the Independence Constitution. There were separate Constitutions for both the Federation and the Regions, as separate Schedules to the Independence Order-in-Council. Similarly, the 1963 Republican Constitution made provisions for the establishment of regional Constitutions for the three regions that composed the Federation. Section 5 (1) thereof stated as follows: “Subject to the provision of this Constitution (Federal Constitution) the Constitution of each region shall have the force of law throughout the region”.

There was also a specific provision in that Constitution which stated that the Executive Authority of a Region (which extended to the execution and maintenance of the Regional Constitution), shall be exercised so as not “to impede or prejudice the exercise of the Executive Authority of the Federation or endanger the continuance of the Federation.” It therefore, follows that in an ideal Federal system, apart from sharing of powers, both the Federal and the Federating units must have their own Constitutions. The question is whether we truly want a Federal or a Unitary System of Government in Nigeria, and whether an elaborate discussion on the desirability or otherwise of this initiative can be undertaken under an amendment process such as the one being contemplated?

Everyone in this nation today, accepts the fact that the nation is faced with a lot of structural and systemic challenges, a good number of which are the products of the inadequacies of the 1999 Constitution. It is no longer news that there has been over-concentration of powers at the centre, to the detriment of the federating units. Indeed, over the years the centre has been grabbing and grabbing powers at the expense of the federating units. The long years of military adventure in governance, has not helped the situation. For the sake of comparison, the 1954 Constitution donated 43 items to the centre in the Exclusive Legislative List, 45 items in the 1960 and 1963 Independence and Republican Constitutions, 66 items in the 1979 Constitution and 68 items to the centre in the 1999 Constitution. The reality of our Constitutional structure and power sharing today is that simple items such as census, labour, trade unions and industrial relations, mines, minerals, natural gas, drugs, evidence, trade and commerce are on the Exclusive Legislative List. Not to talk of the Policing system. This is in addition to 30 items under the Concurrent Legislative List for which both the Federating States and the Federal Government have powers to make laws, subject of course to the supremacy of the Federal Law over the State Law on any such matter where one is inconsistent with the other.

The issue of Nigeria Police and the security architecture in particular, is very germane. It is not an over-statement to say that the greatest challenge confronting our nation today and particularly the security and sustenance of our Constitutional democracy, is that of insecurity. I believe that nobody is left in any doubt that the centralised and monolithic Police structure established by Sections 214 and 215 of the Constitution, can no longer guarantee the security of this nation and its component parts, and this explains why the other security agencies like the Military, the Airforce and the Navy are now directly involved in the maintenance of law and order in different parts of the country.

The Making of a New Constitution

The process of making the 1999 Constitution, as stated earlier, falls short of guaranteeing its popular legitimacy and acceptability. No amendments, no matter how many times can in a retroactive manner, cure this foundational defect in the making of the 1999 Constitution. It remains a military-donated Constitution. A deliberate effort to embark on the making of a new Constitution, will offer an opportunity to Nigerians for popular participation in the Constitution making process of their country.

Scholars of Constitutional Law have argued, and I wholeheartedly agree with their reasoning, that the scope of making a Constitution should not be determined by the rulers or those who govern them. Professor Julius Ihombere, talking about the value of participatory/people driven Constitution making approach had this to say: “political elites and leaders have not come to fully appreciate the importance of a participatory or people driven Constitution making approach to their own survival in office and to the reduction of conflicts and pressures on the State, its institutions and custodians. Aside from using the process to resolve burning national issues, a participatory approach is probably one of the best panaceas to instability, public cynicisms and alienation from government. It is equally the best way to cultivate a culture and tradition of reliance on dialogue and consensus, rather than the resort to violence in the political process”.

The contemporary challenges being faced in the nation today, such as the wide spread insecurity, various sectional loyalty and allegiances instead of loyalty and commitment to the cause of the nation on the basis of nationalism and patriotism, lack of properly focused political system cloaked in ideology and the uncountable number of political parties jostling for power, the agitation for true federalism, both fiscal and structural, make the call for a new Constitution not only worthy of consideration, but I submit, makes it compelling. The Constitution of 1999 falls short in many aspects of what a Federal Constitution should be. It is my humble view that, the time to take the bull by the horn and drive a wholesale replacement of the 1999 Constitution through the instrumentality of an autonomous and independent body, is now. Such body must emanate from the people. Like I stated earlier, the ultimate sovereignty lies with the people. It is my contention that we have got to a point in Nigeria, when we should subject the nation to the sovereign will of the people by making a people driven Constitution.

The materials for this exercise, abound in Nigeria. These include men and women of good standing in their immediate society who can be elected from their constituencies to constitute a Constitution Drafting Committee, to identify and collate the aggregate will and expressions of the people. The Report of the National Political Reform Conference of 2005 set-up by Chief Olusegun Obasanjo, GCFR, (which I was privileged to be a member), the Report of the Constitutional Conference of 2014 set-up by Dr. Goodluck Jonathan, GCFR, the 1979 and 1985 which heralded the 1999 Constitution midwifed by General Abdulsalam Abubakar, GCFR. The workings of the Constitutional Drafting Committee shall be submitted to a Constituent Assembly, and the final product emanating from the Constituent Assembly shall be submitted for people’s referendum. Through this process, the people take ownership of the Constitution.

I am not unaware of the argument that we cannot have two sovereigns in a nation, in the sense of having a Sovereign National Conference as well as a Sovereign Government and Sovereign National Assembly. Going by the example we have seen in South Africa, I think both can coexist without one impeding or obstructing the workings of the other. Let it be recalled that, the agitation and resistance against the Apartheid System of Government in South Africa, was what led to the setting up of the Convention for Democratic South Africa (CODESA). At the time of formulating a new Constitution by the Convention for Democratic South Africa (CODESA), the Republican Constitution of South Africa 1961 was in place and a democratically elected government led by the National Party was also in place. History recorded that it was the Convention for Democratic South Africa, that fashioned a new Constitution that ultimately removed discrimination and all forms of apartheid rule in South Africa. It is time for us to recognise that no problem is ever solved, by technically avoiding the problem.

Besides, there has been no mentioning of a Sovereign National Conference at all in my consideration, advisedly, so as to address the fears of those opposed to a Sovereign National Conference coexisting with a Sovereign Government. It will be a great day for Nigeria, if we can take this giant step to fashion out a new Constitution that will satisfy the yearnings, aspirations and inspirations of all Nigerians, rather than embarking on limitless amendments. A Constitution that will enjoy a buy-in of all Nigerians. A Constitution that Nigerians can take ownership of, by their participation in the process of its making. Somebody said that, no matter how long you persist on a wrong route, you can never arrive at your desired destination. The time for us to take our destiny in our own hands, is now. With all its noticeable inadequacies, the 1999 Constitution has tried to give us a Constitutional democracy albeit in a limited sense; we can have a full blown democracy and democratisation process run and administered by full democrats with a well-rounded Federal Constitution by its name and provisions.

Professor Julius Ihombere in his paper titled ‘Towards Participatory Mechanisms and Principles of Constitutional Making in Africa’ published in 2000 said:

“rather than just seeing the Constitution as a power map focusing exclusively on the question of power (which is what we may achieve by the various Amendments), we must see the Constitution as an instrument for addressing pressing socio-economic, cultural and economic questions, as well as an embodiment of consensus around constitutionalism”. The Constitution must be seen and regarded as “an expression of the general will of the nation, a reflection of its history, fears, concerns, aspirations, vision and indeed, the soul of the nation. Furthermore, the Constitution is not just an elite affair; rather, it must be seen as a single document under which diverse and ideologically opposed people unite, and rally in defence of democracy.”

Conclusion

A new Constitution will translate: “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved… do hereby make, enact and give to ourselves the following Constitution” , from hypothesis into reality. May I conclude by saying that, if we must decisively address the inadequacies, distortions, confusions, fundamental omissions and the inherent contradictions in the 1999 Constitution of the Federal Republic of Nigeria, as amended, if we must establish a true and functional Federation that will guarantee national cohesion through the rule of law – our focus must be to give to ourselves a new Constitution. This is the truth, no matter how inconvenient.

Dele Adesina, SAN, LL.M, FCI Arb

Agenda for Constitutional Amendment in Nigeri

Sebastine Hon, SAN

Prefatory Remarks

Since the Constitution of the Federal Republic of Nigeria, 1999, came into force on 29th May, 1999, it has been amended four times. While acknowledging the voices against further amendment thereof, I am totally in support of its amendment; and I have my reasons.

First of all, Nigeria as a country is far from attaining the national and international height, deserving of a country with such huge and seemingly unquantifiable potentials and potentialities. We must keep striving for the best, until we reach there.

Secondly, every country’s Constitution represents the collective aspirations of the peoples of such country. Thus, in Dangana v Usman (2013) 6 NWLR (Pt. 1349) 50 at 93, the Supreme Court of Nigeria held that the Constitution of any country is “the embodiment of what the people of that country’s desire to be their light in governance”. Also, in A-G Kaduna State v Hassan (1985) 2 NWLR (Pt. 8) 483, the Supreme Court held that the Nigerian Constitution is “meant to cater for the uniqueness of Nigeria as a nation”.

This piece will, therefore, take an historical, empirical and judicial incursion into the prevailing constitutional circumstances of Nigeria, from Independence till date. It will also compare the provisions of our Constitution, with relevant provisions of the Constitutions of selected countries – to arrive at some meaningful answers.

Amendments to decentralise powers, if Presidentialism is to be retained
My experience of political engineering in Nigeria, is that persons in power vehemently oppose suggestions to the effect that powers centralised in them or the offices they are occupying, should be pruned down. Such people only realise the critical importance of such exercises, only when they leave office and other power holders assume leadership! What a tragedy of political self-immolation! The net is that, Nigeria as a country is worst for it; yet, the trend seems to be unabating. Hoping that out present leaders will act differently, I will hereby discuss, brevi manu, the provisions of other Constitutions, to shed light on decentralisation or devolution of powers.

Section 27(2) of the Constitution of Namibia stipulates that “The executive powers of the Republic of Namibia shall vest in the President and the Cabinet.” The word “and” not only deters an elected President from taking several months to constitute his cabinet, but also ensures inclusive governance, with the effect of watering down absolutism.

Additionally, I suggest a reversal to the provisions of Section 145(1) and (2) of the aborted 1989 Constitution of Nigeria, where the President was placed under constitutional duty to assign executive duties to the Vice-President and the Ministers. Without this provision, Nigerian Presidents are always in the habit of sidelining their Deputies, or only accommodating them if they accept to do unimaginable things for them.
Another provision I would like to be accommodated is Article II, Section 3 of the US Constitution, which mandatorily requires the US President to “from time to time give to the Congress information on the State of the Union.” This sounds symbolic; but it helps to keep the President in check.
Finally, I suggest that Part 2, Chapter 1, Section 70 of the Algerian Constitution, be included in our Constitution. It states that “The President of the Republic, Head of the State, embodies the unity of the nation,” who “is the guarantor of the Constitution”. Similar provisions can be found in Article 49 of the Constitution of Armenia 1995. This will go a long way in dousing claims of ‘ownership’ of any Nigerian President, by ethnic and religious jingoists.

Amendments to Usher in Parliamentarism

In spite of the profundity of the above suggestions, however, I cast my dice for parliamentarism. This will drastically reduce centralisation of executive powers, which, under presidentialism has tendency to easily transmute to dictatorship and mindless tyranny. Parliamentarism engenders open and broader accountability, easier checks and balances, and a reduction in red tapism. It also reduces to appreciable levels, the so- called sanctimonious, but artificially created mysticism surrounding the presidency under the presidential system, which paints even the worst of villains as a saint or an untouchable.

I will conclude by stating that, arguments that the presidential system flows better with federalism disappears into thin air, when we realise that South Africa is a federation but is effectively running a parliamentary system, under its 1997 Federal Constitution.

Amendments with respect to Fiscal Federalism

Part I paragraph 25 each, of the Schedules to the 1960 Independence and the 1963 Republican Constitutions vested exclusive legislative powers in the Federal Government over and concerning “Mines and minerals, including oil fields, oil mining, geological surveys and natural gas.” These provisions completely knocked off regional control of resources, and placed them under the exclusive powers of the central Government.

The Presidential Constitution of 1979, the aborted 1989 Presidential Constitution and the 1999 Constitution as amended, all retained these provisions, clearly, therefore vesting exclusive powers over mineral resources in the Federal Government. This has consequently put control of these resources, firmly in the hands of the central Government.

We shall examine other Federal Constitutions around the world. Article 73 of the German Constitution 1990, which contains the Federal Exclusive List, is rather short and says nothing about control of mineral resources. Rather, Article 74(11), which contains the Concurrent List, vests jointly in the Federal and the Regional Governments, power to make laws “relating to economic matters (mining, industry, supply of power, crafts, trades, commerce, banking and stock exchanges, private insurance)”.

In India, which is another Federation, Articles 53 and 54 of the Exclusive List of the Indian Constitution of 1950 as amended in 2003 have listed “oil fields and mineral resources, petroleum and petroleum products; other liquids and substances,” etc and “mines and mineral development” as items to be legislated upon exclusively by the central Government.

Also, Article 22(XII) of the Constitution of Brazil 1988, vests exclusive legislative powers in the Federal Government on “mineral deposits, other mineral resources, and metallurgy.” Similarly, Article 24(0)(I) provides that “It is incumbent upon the Union, the States, and the Federal District to legislate concurrently on: tax, financial, penitentiary, economic and city planning law.”

Even then, Section 24(1) provides that “Within the scope of concurrent legislation, the jurisdiction of the Republic [i.e. the Federal Government] is limited to establishing general rules.” Article 25(2) provides that the States “shall have the power to operate, directly or by any means of concession, the local services of piped gas, as provided for by law, it being forbidden to issue any provisional measure for its regulation.” Of grave importance too, are the provisions of TITLE VI (Articles 145-162), which have made elaborate provisions relating to taxation by the Federal, State and Municipal Governments, thereby putting a constitutional seal against issues like illegal or multiple taxation.

Of equal importance, is the elevation to constitutional status, of agriculture and agrarian reforms, in TITLE VII, Chapter III, thereby putting agricultural policies beyond the whims and caprices of successive regimes! This is most commendable! I quickly recommend this for Nigeria.

The Federal Constitutions of Australia (1990), South Africa (1997) and Russia (1993), are rather silent on “resource control.” In constitutional jurisprudence, generally, the States/Regions of these countries and their central Governments, are having coterminous powers over the natural resources of the said countries.

On the other hand, the US Constitution, vide Article 8(1) thereof, has provided that “The Congress shall have power to lay and collect taxes, duties, imports and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imports and excises, shall be uniform throughout the United States”. Also, the 16th Amendment which came into force in 1913 provides thus:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

On the other hand, Article 10(2) of the same Constitution limits the fiscal powers of the States as follows:

(2) No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net Produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

From the above, none of the countries operating a federal Constitution has permitted total fiscal autonomy to the federating units, as has been consistently canvassed in Nigeria.

In Nigeria, one of the major provisions on fiscal federalism is Section 162 of the 1999 Constitution as amended. In A-G Federation v A-G Abia & Ors (2002) 4 SCNJ 1, it was argued by the eight littoral States of the Nigerian southern coastline, that the Federal Government (FG) had ceded the ownership of Nigeria’s offshore to them, by virtue of the Allocation of Revenue (Federation Account, etc) (Amendment) Decree No. 106 of 1992. The littoral States had argued that this Decree abolished the onshore/offshore dichotomy, on the sharing of oil and non-oil revenues. The issue of 13% derivation and its applicability to “natural” and “mineral” resources, was also raised. The Supreme Court, in a landmark judgement, held inter alia as follows:

• There was no time the FG had ceded the area beyond the low-water mark to the littoral States as contended; hence the seaward boundary of each littoral State, for the purpose of calculating the amount of revenue accruing to the Federation Account, is the low-water mark of the surface thereof, or as in the case of Cross River State which has no archipelago of islands, the seaward limits of the inland waters of that State.

• The phrase “mineral resources” in Section 162(2) of the Constitution excludes or does not contemplate “natural resources” – as argued by the Northern or Middle-Belt States that had filed counter-claims.

• The FCT Abuja is neither a State nor a Local Government, hence cannot enjoy derivation under Section 162(3)
of the Constitution.

• Section 1(d)(iv) of the Allocation of Revenue Act, Cap. 16, LFN, 1990, in so far as it stipulated derivation of 1% instead of “not less than 13%”, was null and void.

Following the above judgement, the Olusegun Obasanjo-led Government qua the National Assembly, bowed to pressure from Niger Delta agitators and enacted the Revenue Allocation (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004. Section 1(1) of this Act provides thus:

1.-(1) As from the commencement of this Act, two hundred metre water depth isobaths contiguous to a State of the Federation, shall be deemed to be part of that State for the purposes of computing the revenue accruing to the Federation from the State pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 or any other enactment.

In A-G Cross River v A-G Federation (2012) All FWLR (Pt. 646) 408 S.C., the question was whether Cross River had ceased to be a littoral State by virtue of the judgement of the International Court of Justice (ICJ), which had yanked off the Bakassi Peninsula from Nigeria, and had ceded same to Cameroon. Central for consideration was Section 1(1) of the new Revenue Allocation Act, 2004, quoted above. The Apex Court agreed that by virtue of the ICJ judgement, Cross River State was no more a littoral State, hence the revenue from the oil wells which hitherto was accruing to it, now accrued to Akwa Ibom State.

It must be noted that, the word “deemed” was used in Section 1(1) of the 2004 Act, quoted above. If the legal interpretation of that word is to be applied [for which see Savannah Bank Ltd. v Ajilo (1989) 1 NWLR (Pt. 97) 305 at 325 SC], then the several decisions reached by the Supreme Court on revenue accruing from littoral States, would not have been so reached. One of such decisions was the case of A-G Adamawa v A-G Federation (2006) All FWLR (Pt. 299) 1450 S.C. In this case, the Plaintiffs, invoking the original jurisdiction of the Apex Court, argued that Section 1(1) of the 2004 Act had unconstitutionally extended the seaward boundaries of the littoral States, in contravention of Section 8 of the 1999 Constitution. Uwais, CJN, who delivered the lead judgement of the Court, held rather proactively, with due respect, as follows:

“This, with respect, is not a correct interpretation of the provisions of the Act, because the Act specifically states that the extension is only to be deemed, in other words, it is not real but notional, and it is specifically intended for the purpose of computing the revenue which accrues to the Federation Account from the littoral States”.

What a public policy judicial opinion! If it was only “notional”, why then enforce it? The Supreme Court was later to admit in A-G Rivers State v A-G Akwa Ibom State (2011) All FWLR (Pt. 579) 1023 at 1081 that the agitations in the Niger Delta following the 2002 ‘resource control’ decision of the Supreme Court in A-G Federation v A-G Abia, supra, constituted the sole factor that made the National Assembly to promulgate the 2004 Act!

As it stands now, therefore, all the three arms of the Federal Government of Nigeria have over time, consistently exhibited resolve to quench violent agitations from the Niger Delta Region especially over ‘resource control’ or fiscal federalism, as indicated in this piece. I will briefly further adumbrate on this, as follows:

• Chapter XII of the 1963 Republican Constitution had established the “Niger Delta Development Board”, which under Section 159(4) of that Constitution was to be “responsible for advising the Government of the Federation and the Governments of Eastern Nigeria and Mid-Western Nigeria, with respect to the physical development of the Niger Delta”. This Board was to last until 1st July, 1969.

• In the course of time, several critical States were created for the Niger Delta Region – Akwa Ibom, Bayelsa State and Delta. Abia and Imo States have also joined in the enjoyment of 13% derivation, and have also been deriving benefits from developmental bodies like the Niger Delta Development Commission (NDDC).

• The Ibrahim Babangida-led administration established the Oil Minerals Producing Development Commission (OMPADEC), to cater for the special needs of the Niger Delta. Today, the NDDC is statutorily established and is undertaking similar, if not graver assignments.

• The 1999 Constitution, as shown above, established the revenue formula whereby Niger Delta and some Eastern Nigeria States take 13% of all oil revenues.

As shown above, attempt by some Northern and Middle-Belt States to equate “mineral resources” with “natural resources” so as to benefit from this constitutional largesse, was rebuffed by the Supreme Court.

• The Federal Government, as admitted by the Supreme Court, bowed to pressure from the Niger Delta to enact Section 1(1) of the 2004 Revenue Act, which for all intents and purposes, is in conflict with Treaties entered into by Nigeria – like the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958; the Geneva Convention on the High Seas, 1958 and the UN Convention on the Law of the Sea, 1982. This is a grave national sacrifice!

Since the North-Eastern Development Commission has been similarly created (as the NDDC in the South-South), to address the humanitarian and economic challenges which arose from Boko Haram activities, a similar Commission be established for the Middle Belt and other Northern Nigeria minority tribes – to sooth their grave injuries suffered from herdsmen attacks and activities of bandits.

Amendments to Strengthen Regional and Municipal Autonomy

Many countries have granted regional and municipal semi-autonomy to their components thereof, even though some of the countries are not running federal Constitutions.

Section 25(0) of the Federal Constitution of Brazil, 1988, permits the States to be “organised and governed by the Constitutions and laws which they may adopt, with due regard for the principles of this Constitution”, while Section 30 of the Constitution grants “Municipal Self Government”. See also, Section 116 of the Australian Constitution of 1900; Part IXA (sections 243P-243ZG) of the Indian Constitution; Sections 104-105 of the Armenian Constitution of 1995; Section 142 of the Constitution of Azerbaijan 1995; Chapter III of the Constitution of Bangladesh, 2004; Section 28A of the Constitution of Ireland, 1937; Section 141(3) of the Constitution of Afghanistan 2004 and Article 108(3) and (4) of the Constitution of Albania 1998. Indeed, Article 111(2) of the Albanian Constitution provides inter alia that: “The units of local government have an independent budget.”

In a similar fashion, Section 153 of the Constitution of South Africa 1997, which is also a Federal Constitution, has mandated each local government council to “structure and manage its administration, and budgeting and planning process to give priority to the basic needs of the community, and to promote the social and economic development of the community.” Also, Section 154(1) compulsorily requires both the national and regional governments “by legislative and other measures”, to “support and strengthen the capacity of municipalities to manage their own affairs, to execute their powers and to perform their functions.” That Constitution has no similar provision as 162(6) of the 1999 Constitution of Nigeria, which has established a Joint State/Local Government Account.

Other Constitutions that have either granted semi self-government to the municipalities or have provided that the administration of this level of government shall be strictly as stipulated by law are: the Irish Constitution of 1937 – Section 28A thereof; the Constitution of Cameroon – Section 55(2) thereof; the Constitution of Croatia, 1990, as amended in 2000 and 2001 – Section 132 thereof; the Constitution of Belgium, 1970 – Section 39 thereof, etc.

In 2005, the National Assembly, apparently seeking to sidetrack Section 162(6) of the Constitution, enacted the Monitoring of Revenue Allocation to Local Governments Act, 2005. The Supreme Court wasted no time, in A-G Abia State v A-G Federation (2006) All FWLR (Pt. 338) 604 S.C., to strike it down as being unconstitutional. I hereby strongly suggest that Section 162(6) of the Constitution be deleted, to pave way for a complete autonomy of Local Government Councils, as is obtainable in South Africa – another Federation. Similarly, the Apex Court, in the consolidated suits of A-G Ogun State v A-G Federation (2003) FWLR (Pt. 143) 206 S.C., had held that by virtue of Section 162(5), (6) and (8) of the Constitution, the Federal Government had no power to pay directly any amount standing to the credit of the Local Government Councils to such Councils.

This decision, too, would have been otherwise, but for the named provisions of the Constitution. An amendment to remove or modify the said provisions is hereby suggested.

The Constitution of Namibia, 1990, in Section 111, has vested control of local councils in the National Legislature of that country. If this provision were in place in Nigeria, the Supreme Court would not have reached the decision it reached in A-G Abia State v A-G Federation (supra) and A-G Ogun State v A-G Federation (supra).

My suggestion, therefore, is an amendment of relevant provisions of the 1999 Constitution to either straightaway remove the Local Governments under the grip of the State Governments, or to place them under the National Assembly. The grassroots of Nigeria will fare much better if either of these is effected.

Amendments to usher in Reforms in the Judiciary

We must first learn from history, and then try to make amends. The Code of Conduct Tribunal is currently not under the National Judicial Commission (NJC), yet it has power to try criminal offences, and even to levy punishment. Since it performs those functions, it ought to be under the NJC, which superintends the Judicial arm of government. The removal of the then Chief Justice of Nigeria, Hon. Justice Walter Onnoghen, owing to the actions of this Tribunal, is still green in our national psyche. It was Justice Onnoghen yesterday; it could be another person another day – but it is the country that pays the price.

Secondly, I will suggest that retired Judges and Justices who are still strong and who have a clean track record, be appointed to sit and determine election petitions. This is by no means castigating our Judiciary; but my suggestion is intended to bring back the lost glory of the Judiciary. I have backing in Section 127 of the Constitution of India, 1950, which has permitted the appointment of ad hoc Judges, who may have retired from the Bench.

Thirdly, I suggest that Section 285 of the Constitution be further amended to allow for the determination of election petitions within staggered timelines, as follows: 240 days for the Presidential election petition; 200 days for Governorship election petitions; 180 days for National Assembly election petitions and 150 days for State Assembly election petitions. The sizes of these constituencies vary; hence it is simply illogical to provide that, all election petitions must be determined within 180 days. Grave injustice is visited on litigants, especially petitioners, who have genuine grievances to ventilate before the Election Tribunals.

Finally, several provisions of the Constitution should be amended to ensure that the capital expenditure of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal are handled by the NJC. Since there is no such express provision, the NJC shirks from its responsibility and allows State Governors to call the shots. Most such courts are not only grossly underfunded as a result; this untidy constitutional arrangement has made State High Court Judges almost appendages of State Governors, with grave consequences on the rule of law and due process. This must be urgently addressed.

Amendments to Ensure Restructuring of Office of Attorney-General and Minister of Justice

As things stand today, it is probably only Nigeria that is still combining the office of Attorney-General and Minister/Commissioner of Justice, thereby making the holder of that office both a general Ombudsman and a politician. This is not good for the smooth working of the system, and should be stopped via constitutional amendment.

See Section 76 of the Constitution of India 1950; Section 64 of the Constitution of Bangladesh 2004; Section 30 of the Constitution of Ireland 1937; Section 134 of the Constitution of Afghanistan 2004; and the Constitution of Argentina 1853, etc, have all established/recognised ‘A-G’ without the addition ‘Minister of Justice’. And of course, we know that the US also has ‘A-G’ simpliciter. These are all random examples – meant to show that Nigeria is lagging far behind in this regard, hence the need for an amendment to reflect the general trend.

But if we insist on retaining the status quo, I will suggest creation of the office of The Ombudsman – as in Section 86 of the Argentine Constitution, Section 77 of the Constitution of Bangladesh and Section 89 of the Constitution of Namibia; or the office of The Public Protector – as in Section 182 of the Constitution of South Africa 1997; or the office of The Public Defender – as in Article 134 of the Constitution of Brazil, etc.

Amendments to Accommodate State Police

In the US, the Texas Rangers, founded in 1823 by Stephen F. Austin to protect the settlers from attacks by the indigenous Indians, remains the earliest form of State policing in the USA. To cut a long story short, however, modern day State policing in that country is traceable to May 2, 1905, when the State of Pennsylvania established by law the first organised State Police in the USA. For lack of space, I will have to say that Nigeria is also VERY RIPE for State Police; and all relevant portions of the Constitution and Federal laws should be amended to accommodate this.

Amendments to Allow Referendums and Plebiscites

Making provisions for the convocation of referendums or plebiscites is one other sure way of restructuring our Constitution, with a view to guaranteeing public peace and accountability in public affairs. Examples from other countries will suffice here.

Article 49(XV) of the Constitution of Brazil allows federal legislation which would “authorise a referendum and to call a plebiscite” in deserving circumstances. Articles 150-152 of the Constitution of Albania also allow referendum in deserving circumstances. Section 47 of the Constitution of Ireland provides that, even that Constitution can be amended through a referendum. Ditto Armenia – by virtue of Chapter 8 of the Constitution of Armenia, 1995.

Miscellaneous Suggestions

I hereby make the following additional suggestions:

• Provisions be made for social security – as in Chapter II of the Constitution of Brazil.

• Provisions be also made for children’s rights – as in Section 15 of the Namibian Constitution, including a constitutional prohibition against children being employed as factory workers – as in Section 24 of the Indian Constitution.

• Provisions be made for the protection of minority tribes in Nigeria – as in Sections 29 and 30 of the Indian Constitution.

• Some of the critical provisions of Chapter II of the Constitution should be made justiciable. In Ireland, Chapter XIII of its Constitution, dealing with “Directive Principles of Social Policy,” the equivalent of Chapter II of the Nigerian Constitution, is made justiciable. By this, Government will not only feel, but will also be held to be more accountable by the citizenry.

Chief Sebastine Hon, SAN, FCIArb, Constitutional Lawyer and Author