The Constitution-Making Industry

BY KAYODE KOMOLAFE

Making a people’s constitution is not only a ritual in Nigeria, it has also evolved into a yet -to- be acknowledged industry.

The industry flourishes when the ferment is generated against the subsisting constitution and activities are stepped up for the making of another which the promoters believe would be the only legitimate document as the basic law of the land.

Politicians push vigorously for a new constitution when out of power and they pay a lip service to constitution reviews when they are in government. The politics of constitution-making is such that politicians are good at identifying the problems of Nigeria only when they are out of power.

Apart from the episodic heat generated by the politics of constitution-making or review, the exercise comes with a lot of cost. The reports of the past efforts at making a new constitution or reviewing the existing one are simply ignored while the frenzy for a fresh attempt is taking place.

Worse still, the cost of the past exercise does not come into reckoning as funds are made available for another exercise. Billions have been spent since 1999 on reviewing the constitution; but the huge cost is hardly a matter of public discussion. In most cases the executive and legislature set up parallel committees to work on reviewing the constitution. Just as it is the case in the current attempt, the Senate and the House of Representatives appointed at various periods separate committees. The committee members, of course, travelled round the country in the name of “meeting the people” at enormous public expense. Sometimes, the committee members went abroad to get inspiration from other countries on making a people’s constitution or to consult with Nigerians in the diaspora.

Meanwhile, the expenditures made on the mostly still-born constitution-making exercises were seemingly not affected by the economic climate of poverty enveloping the lives of the people for whom the constitution is supposedly meant at any time.

So, each time you hear of constitution-making in Nigeria always remember that it is not only thousands of words that would be spoken, billions of Naira and millions of dollars are also spent in the process. This is the defining feature of the Nigeria constitution-making industry. It is, of course, consistent with the culture of non-accountability in the public realm.

In a clime of genuine accountability, it would be amazing to know how much has been spent by the successive administrations and sessions of the National Assembly on reviewing the constitution. It would also be interesting to know how much the non-governmental bodies and groups have invested in the business of “inclusive” review or making of the constitution. It is time to audit not only the reports of the past efforts at making a constitution but also the cost to government and non-governmental bodies. The auditing should be extended to the support of foreign governments and non-governmental institutions.

The foregoing proposition could be illustrated with samples of attempts made “to do something about the constitution” in the last 22 years.

The important background to this was the constitutional component of the agitation for the revalidation of the June 12, 1993 presidential election. In the struggle for June 12, the call for a “sovereign national conference” was strident. Implicit in the call was the idea that the proceedings of the proposed conference would be distilled into a “truly federal” constitution which would determine the terms of the Nigerian union. The proponents of the sovereign conference often said that the conference should answer two questions. The first was if Nigeria should be one country and the second was on the structure of the union. The deaths within a space of one month of the Head of State, General Sani Abacha, and that of the winner of the June 12 election, Bashorun MKO Abiola, brought an entirely different political scenario. The succeeding regime of General Abdulsalami Abubakar was wisely conscious of the fact the public mood would not countenance another prolonged military rule. So the 1999 was understandably put together in a hurry to give the legal basis to the Fourth Republic. Now, those who dismiss the document contemptuously as “illegitimate” and “a big lie” (even though it has been the constitution longest in use in the nation’s political history!) often skip some parts of the story. Despite the fact that he was in office for less than a year, General Abubakar set up a committee headed by Justice Niki Tobi made up of distinguished Nigerians. The committee also went round the country (as some persons are doing now) to seek the views of the people. The exercise too was at a monetary cost to the nation.

At the end of the opinion sampling, the nucleus of the 1999 constitution came from the important 1979 Constitution, the draft of which was memorably debated by an elected constituent assembly in 1977/78. Some critics of the 1999 Constitution now present issues as if a soldier merely wrote a paper and proclaimed it as the constitution. As Abubakar said recently on Arise Television, his regime could not be held responsible for the inability of the nation in 22 years to review the constitution comprehensively or even make a new one as some Nigerians would rather prefer as an option. And Abubakar is quite right on that score.

It is, therefore, relevant to ask why all attempts to review the constitutions in the last 22 years have failed despite the huge amount of money spent in the process. In order to ensure the success of the current attempt, this question should be answered in the national interest.

It was no surprise that barely six months after his inauguration on May 29, 1999, President Olusegun Obasanjo set up a multi-party committee to review the constitution. The Attorney-General in that administration, Chief Bola Ige, had been a strong advocate of sovereign national conference and restructuring. Ige was the deputy leader of Afenifere and a former presidential aspirant on the platform of AD. His support for the proclaimed work of the committee was conspicuous. The presidential committee had members from the three major parties at the time – the then ruling Peoples Democratic Party (PDP), All Nigerian People’s Party (ANPP) and the Alliance for Democracy (AD). The presidential committee was liberal enough to have a member of an opposition party, the AD, Ambassador Yusuf Mamman, to be the chairman. He was later replaced by Alhaji Ahmed Abdulkadir when the AD crisis erupted. The Ford Foundation partly funded the exercise. The committee reportedly submitted an “interim report” to the government. Till he left power on May 29, 2007, Obasanjo never referred to the report of this committee of eminent Nigerians. Meanwhile, successive committees of the National Assembly were also actively working on the review of the constitution. The topics which the various committees examined included devolution of power, state police, fiscal federalism, status of the local government etc. These are the same issues being debated today as if they just emerged from the womb of the polity.

Obasanjo was not done yet in responding to the agitation in the political landscape. Although he never pursued restructuring while in power, Obasanjo played politics with the agitation for “true federalism.” In 2005, he inaugurated a Political Reform Conference. The conference attracted the best and the brightest within the polity and the civil society. For instance, the great nationalist Chief Anthony Enahoro, a prominent advocate of a sovereign national conference and restructuring, led the Edo state delegation to the conference. Not a line of the recommendations of the conference on constitutional amendments was ever implemented despite the huge public funds expended during the months that eminent Nigerians converged in Abuja.

President Umaru Yar’adua isolated the issues of lack of credibility of the electoral process by setting up a committee headed by former Chief Justice of the federation, Justice Muhammadu Uwais. Yar’adua died before the end of his tenure. Successive administrations have ignored the report of the committee including the aspects that could require constitutional amendments.

Before President Goodluck Jonathan inaugurated the famous 2014 Conference, the Seventh National Assembly was actually carrying out its own edition of constitution-making. As a matter of fact, on February 27, 2013 the Joint National Assembly Committee was in Chatham House in London to “consult” with Nigerians based in the United Kingdom on the review of the 1999 Constitution. Among the constitutional matters that came up in the discussions were gender inequality, state creation, local governments, integrity of elections and immunity for chief executive officers and their deputies from prosecution. The 2014 conference attracted wide interests across the political spectrum and the various divides. The high quality conference took its task seriously and competently discharged it. Some of its recommendations require administrative steps for implementation while some others require legislations and constitutional amendments. In fact, not a few advocates of “restructuring” and “true federalism” who participated in the conference have said that the ills of the Nigerian federalism could be substantially cured with a clinical implementation of some of the recommendations of the distinguished forum. The problem started with the failure of Jonathan, whose idea the conference was in the first place, to implement even the administrative part of the report. Jonathan’s successor, President Muhammadu Buhari, has been urged in vain to give leadership in the process of implementing the aspects of the report requiring constitutional amendments. These aspects include power devolution, creation of state police and purging the exclusive list of some items that should be in the residual list. Yet the conference cost the nation a fortune. Items for constitutional reviews are still being discussed, but the cost is never discussed as it is normal with the ethos of the constitution-making industry.

President Buhari’s party, the All Progressives Congress (APC) campaigned among other things on the platform of restructuring in 2015. However, it is clear now that restructuring has never been Buhari’s priority. In the build-up to the 2019 election, however, the APC set up a committee to reformulate its position on restructuring of the Nigerian federation. The committee headed by Governor Nasir el-Rufai of Kaduna state has submitted its report a long time ago. The President is yet to give effect to his party’s manifesto in this respect.

However, the constitution-making cycles have continued. About 24 months to the end of Buhari’s tenure, the political landscape is agog again with activities to review the 1999 constitution.
Now, restructuring or the quest for a “true federalism” is ultimately a constitutional question. The legislative steps required to bring this about are strictly within the purview of the National Assembly.

In fact, this otherwise valid point has been opportunistically exploited by the Buhari administration that is really not enamoured of restructuring. The unhelpful refrain of some members of the administration has been that if you want restructuring, go to the National Assembly.

Meanwhile, some restructuring advocates and enthusiasts of “true federalism” still question the legitimacy of the legislature to genuinely review the constitution. According to these critics, the sovereign power to make a constitution resides in the people and not in the legislature created by the constitution that should be changed. They want an entirely new document derived from the popular will. Yet, it will take an unconstitutional measure to take away the power of constitution review from the legislative arm of government created by the 1999 Constitution, however defective anyone may think it is at present. It is sheer optical illusion to think otherwise. No incumbent government will voluntarily convoke a sovereign national conference for the purpose of making a new constitution. This is one of the hidden problematics of restructuring by means of a review or amendment of the constitution. To solve this conundrum, the dissonance between ethnic and regional champions on the one hand and their respective representatives at the federal and state legislatures on the other hand should be removed.

There is, therefore, the need for a lot clarity of purpose so that the constitution would be seen for what it is really: a living document that is subject to amendments as the need arises from one age to another.

This is necessary to put an end to the growing industry of periodic making of constitution at enormous costs.

QUOTE
It is relevant to ponder why all attempts to review the constitution in the last 22 years have failed despite the huge amount of money spent in the process.