Debunking the Debunker

DIALONGUE WITH NIGERIA BY AKIN OSUNTOKUN

“We have been tuned to think it is constitutions (laws) that develop a society. Constitutions can NEVER take the place of visionary, competent and patriotic leadership”.
“If rapid political progress is to be made in Nigeria, it is high time we were realistic in tackling its constitutional problems” –Simon Kolawole quoting Awolowo approvingly

“In my other article, I compounded things by quoting a section of the famous 1963 Constitution to debunk the fallacy that regions were granted resource control in the first republic. Mines and minerals, including oilfields, oil mining, geological surveys and natural gas, were all on the Exclusive Legislative List and squarely under the jurisdiction of the federal government” –Simon Kolawole

“The 1963 Constitution Section 140, titled “Mining Royalties and Rents”, stated thus: “(1) There shall be paid by the Federation to each Region a sum equal to fifty per cent of (a) the proceeds of any ROYALTY received by the Federation in respect of any minerals extracted in that Region; and (b) any mining RENTS derived by the Federation during that year from within that Region.” –Simon Kolawole

I hardly write rejoinders save to those articles specifically addressed to me. I find it even more difficult to join issues publicly with people I have close personal and fraternal relations. I consider Simon Kolawole a close friend, brother and esteemed colleague. On the occasions I cannot contain myself I take him on one on one. I have however gotten increasingly alarmed at his persistent trend of peculiar interpretation and understanding of Nigeria’s constitutional development; which is quite misleading, contradictory, ridden with distortions and unbridled egotism and panders to the perpetuation of the political status-quo. There is, of course, nothing inherently wrong in pandering to the status quo if the status quo is working.

This is a point I have reiterated on several occasions summoning the wisdom of Alexander Pope to better make the case. ‘Let fools contend, what is best administered is best’. The corollary to this punditry is that we must repudiate a system the more dysfunctional and ruinous it becomes. The assumption of Alexander Pope borders on human rationality and speaks to the fact that if our basic citizen requirements are optimally satisfied there should be no basis to clamour for the change of such a blissful certainty for the unknown. If today I can drive from Abuja to Lagos on a super highway anytime of day or night; can click on the switch and the light comes on, what do I care if Nigeria is operating a unitary constitution. Indeed it is not uncommon these days, in total disgust with contemporary Nigeria, to wish the alleged ‘third term’ of Obasanjo had succeeded.

By the same token, Nigerians would be raving mad if they do not repudiate a system which makes it possible for Buhari to deny the South-west the wherewithal to adequately confront a situation of total security breakdown for which the president and the constitution bear responsibility in the first place. As we speak, Amotekun is precluded from carrying arms as it aims to wrestle down the AK 47 wielding bandits. Was it not Albert Einstein who defines madness as doing the same thing and expect a different outcome. Here is Kolawole, “in one article, I argued that “true federalism” is a fallacy, that what we have are variants of federalism as no two countries practise the system the same way. Each federal constitution decides how powers are shared — with currency, diplomacy and military usually centrally controlled”. So following Kolawole’s logic, if any constitution veers off the boundaries of all the variants of federalism (the irreducible minimum) and calls itself federalism, wouldn’t it be wrong to say this is not true federalism? Before 1966, even 1983, Nigerian were not talking about true federalism, it only became an issue at the spiralling of Nigeria’s governance crisis and its correspondence with the extent of the deviation from what Nigerians adopted as federalism as elaborated in the 1960 and 1963 constitutions.

Beyond Nigeria and according to Module 11 in ‘The Development of American Government’ one of the irreducible minimum of federalism is stated as follows “Although today’s federal systems vary in design, five structural characteristics are common to the United States and other federal systems around the world, including Germany and Mexico. First, all federal systems establish two levels of government, with both levels being elected by the people and each level assigned different functions”
Contrary to the federalism specification above, the “federalism” that was incorporated into the 1979/1999 Constitution includes the aberration of an autonomous third level of government called the local government which came via a military dictatorship dictat in 1976. And this brings me to the most amazing discovery from the prolific pen of Kolawole namely

”1999 CONSTITUTION WAS PRODUCED BY CIVILIANS NOT MILITARY”. And the rationale for this assertion was “On November 11,1998, Abdulsalami inaugurated the Constitution Debate Co-ordinating Committee (CDCC) to “pilot the debate, co-ordinate and collate views and recommendations canvassed by individuals and groups and submit report not later than 31 December 1998. Kolawole observes: “It was not headed by a soldier but by Justice Niki Tobi, with Dr. Suleiman Kurmo as deputy chairman. There was no single military man on the committee. They went round the country to collect memoranda from the public through town hall meetings in Benin, Enugu, Jos, Port Harcourt, Kaduna, Kano, Ibadan, Lagos and Sokoto. They excluded military formations”.

He continues: “Tobi said: “In the light of the memoranda and the oral presentation on the 1995 Draft Constitution, it is clear that Nigerians basically opt for the 1979 Constitution with relevant amendments. They want it, and they have copiously given their reasons for their choice in the different memoranda and oral presentations. So we have recommended to the Provisional Ruling Council the adoption of the 1979 Constitution with relevant amendments from the 1995 Draft Constitution. Abdulsalami accepted the recommendation”.

First, what mattered less to Kolawole was that the Niki Tobi committee represented nobody but the individual who created it and employed the members. Yet they were charged with the task of making a constitution for Nigeria without the consent of Nigerians through a referendum or their elected representatives. Allied to the above is the simple logic that who pays the piper dictates the tune and in case anyone was in doubt, it was spelt out in the enabling decree establishing the constitution. According to the “Constitution of the Federal Republic of Nigeria (Promulgation) Decree No 24.

“Whereas the Constitutional Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council; “And whereas the Provisional Ruling Council has approved the report subject to such amendments as are deemed necessary… after necessary amendments and approval by the Provisional Ruling Council”.

Save the millennials, I don’t know of any generation of Nigerians who wouldn’t have heard the Nigerian military rulers mantra of “no go areas and settled issues of the Nigerian federation” when setting off the so called constitutional conferences on their errands. As I have stated elsewhere, the role of the preceding constitutional conferences was advisory and limited by what the military rulers cited as “no go areas and settled issues”. Such no go areas included the predetermined constitutional/ political structure of 36 states and 774 local governments; the creation of the local government tier as autonomous third tier of government; the citation of Nigeria as multi religious state as against a secular state; Sharia etc And then there were the additions and substractions including the land use act; and a centralisation, in letter and spirit, and in tandem with the command and control culture of the military institution. And whatever was decided in the conferences was subject to the vetting and approval of the military authorities. I wonder what is left of constitution making if the so called constitutional conferences were barred from reviewing the constitutional structure of the country.

And there was the grave injustice Kolawole did to the memory of Chief Obafemi Awolowo. He contends: “Finally, let me ruffle feathers again. Awo is being used as the poster boy of the “restructuring” campaign. He is always quoted to have said: “Nigeria is not a nation. It is a mere geographical expression.” Sorry, but this is a clever manipulation of Awo’s thoughts on page 48 of his book, ‘Path to Nigerian Freedom’. Under the chapter, ‘Towards Federal Union’, this is the full context: “If rapid political progress is to be made in Nigeria, it is high time we were realistic in tackling its constitutional problems. Nigeria is not a nation. It is a mere geographical expression. There are no ‘Nigerians’ in the same sense as there are ‘English’, ‘Welsh,’ or ‘French’.”

“In truth, what Awo was advocating was nation-building. He was not asking for Oduduwa Republic. By 1968, he had this to say about the Nigerian project: ‘It is incontestable that the British not only made Nigeria, but also (handed) it to us whole on their surrender of power. But the Nigeria which they handed over to us had in it the forces of its own disintegration. It is up to contemporary Nigerian leaders to neutralise these forces, preserve the Nigerian inheritance, and make all our people free, forward-looking and prosperous. He (Awolowo) had, obviously, moved beyond the federalism debate he wrote about in 1947, but people make it look like he campaigned for federalism all his life’”.

Pray how does the quoted excerpt above amount to Awolowo moving beyond the federalism debate? When it was precisely in the same 1968 in the ‘Peoples Republic’ that Awolowo reiterated what he argued in 1947: “I predict that every multi-lingual or multi-national country with a unitary constitution must either eventually have a federal constitution based on the principles which I have enunciated, or disintegrate, or be perennially afflicted with disharmony and instability.”

Well I don’t know the understanding of Kolawole of the ‘restructuring campaign’ but what it means generally is the restoration of federalism (devolution and decentralisation of powers) and specifically the restoration to the spirit, if not the letter, of the 1963 constitution. Understood as such, no individual political leader better qualifies as the ‘poster boy’ of restructuring as Awolowo. And what is the relevance of ‘Oduduwa Republic’ in all this?
And by the way and in order for Kolawole to better understand Awolowo and how he anticipated the susceptibility of Nigeria to today’s comprehensive failure, he actually canvassed for the insertion of the right to secession clause in the 1960 constitution.