THE MAKING OF A ‘HOME-GROWN’ CONSTITUTION

The 1999 Constitution is quite in order, argues Joe Ekpe Edet

Nigeria is on the march for a new constitution that is expected to usher in a fresh, promising and invigorated era. The past constitutional experiments which mid-wifed the Parliamentary (Westminster styled) and the Presidential (American styled) systems of government seems not to have met the expectations of many. It has been described variously as a “a document that tells lie against itself” by no less a person than Chief Rotimi Williams; as a fraud by Prof. Itse Sagay and as an illogicality by the foremost Constitutional lawyer, Prof. Ben Nwabueze. There have been great agitations therefore to produce an autochthonous constitution which would be “a made in Nigeria constitution”.

What then is an autochthonous constitution? Perhaps the phrase will be better understood by defining the word “Autochthonous”. The word simply means indigenous or native. The word is traceable to ancient Greece where the Athenians considered their ancestors as the primordial inhabitants of the land, as if sprung from the very soil of the region that they inhabited. Thus their word for any true born Athenian was “autochthon” which is literally translated to mean springing from the earth.

A constitution is therefore said to be autochthonous in nature if it derives its force and validity from its own native authority. Put differently, a constitution is autochthonous if it is home-made or home-grown, but is not imposed by an imperial or colonial master or power. The U.S. constitution is a good example of an autochthonous constitution. The constitution-making process clearly reveals that it is autochthonous. The reason is not far-fetched. As a result of the dismal failure of the Articles of Confederation, the 55 representatives of the 13 colonies-turned-states met at the Philadelphia convention on May 14, 1787, for the purpose of amending the defects of the Articles of Confederation.

But when the delegates to the conference concluded that the Articles of Confederation were beyond repairs, they proceeded to change the entire form of government at its very root – that is, they staged a bloodless coup d’état. When nine of the 13-state ratification conference congress ratified the draft constitution, the confederate congress of the United States, on September 17, 1788, enacted the new constitution to come into effect on March 4, 1789.

Equally, the preamble of the U.S constitution also testifies as to its autochthonous nature when it states: “We the people of the United States” in order to form a more perfect union. This wording indicates the process by which the United States of America was created – that is by the voluntary unification of the states, where the individuality of each state was accepted and recognized. According to Chief Justice Marshall in Mcculloch v. Maryland the “We the people” of the United States of America, not the individual States, created it. In that case, the State of Maryland had claimed that the constitution emanated from the independent sovereignties of the states and that the exercise of the federal power could not predominate basis of federal-state claim of power. Injecting this theory of “independent state sovereignty” as a theoretical basis of federal-state relationship, Chief Justice Marshall also established the principle that the new government created by the constitution was national, not just federal government.

According to Chief Justice Chase in Texas v. White, the “We the people of the United States who had manifested their will, through their adoption and ratification of the constitution , to form “a more perfect Union”, of indestructible states, were the people of the “entire nation”, not just the people of “a particular state”, There, the constitutional issue was whether the ordinance of secession adopted by the conversion and ratified by a majority of the citizens of the state of Texas, and all the acts of its legislature intended to give effect to that secession, were constitutional within the meaning of the “we the people” of the U.S. Chief Justice Chase, of course, declared those acts of the people of Texas unconstitutional because they (the people of Texas did not constitute the “we the people” within the contemplation of law. But in its most modified form the concept of “we the people” of the U.S constitutes the “people” of every generation of the Americans (that is, the contemporary, not the dead, Americans) who have the power to change the constitution at their will, and whose will is to be respected by the “Public interpreters” (legislators, judges and administrators).

In Nigeria, the preamble to the Constitution of the Federal Republic of Nigeria,1999 for example, declares that it was made by “We the people of the Federal Republic of Nigeria having firmly resolved to live in unity”. The wordings of the preamble are concerned with the creation of an “indivisible and indissoluble” whole, since the units were originally created by carving out three regions: Northern, Western and Eastern from the one unitary whole. According to J.A.Yakubu in his Constitutional Law text, the preamble to the constitution, clearly speaks of the constitution as a by-product of the people put together and firmly confirmed by representatives of the people. An enacted constitution should therefore meet the needs and aspirations of the people to which the document relates. This has been the main contention and argument for a constitution drafted and anchored on originality.

Although the mere declaration that a constitution is made by “We the people” does not ipso facto make it an autochthonous constitution, the 1979 Nigerian Constitution making process which metamorphosed or birthed the 1999Constitution, clearly shows that it is autochthonous and that the constitution was drafted by a Constitution Drafting Committee made up of eminent Nigerians and headed by Chief Rotimi Williams, the foremost lawyer. The draft constitution was further debated by a Constituent Assembly which was made up of equally eminent Nigerian citizens. The majority of the membership of the constituent assembly members were elected by the people of Nigeria in their different constituencies.

Moreover, Nigerians of all walks of life contributed immensely to the debates which preceded, an indeed, influenced the constituent assembly in its deliberation on the Constitution. The argument that it could not be described as being truly autochthonous seems, however, to have risen from a restrictive definition of what is autochthonous. This is particularly so not only because that constitution was not forced upon the people of Nigeria by an external imperial or colonial authority, but also because the people of Nigeria acquiesced to the amendment made by the Supreme Military Council (SMC) and indeed, the enactment of the Constitution.

The process that led to the making of the Constitution of the Federal Republic of Nigeria 1999 which is almost a replica or a facsimile of the 1979 Constitution gives credence to its autochthonous nature. On 11th November 1998, the then Head of State and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, General Abdulsalami Abubakar, an indigene of Nigeria though a military ruler inaugurated the Constitution Debate Co-ordinating Committee (CDCC) headed by the renowned jurist, Justice Niki Tobi, a justice of the Supreme Court as he then was. It was charged with the responsibility to inter alia: “pilot the debate, co-ordinating and collate views and recommendations canvassed by individuals and groups and submit (the) report not later than 31 December 1998”. This the committee deed and so many Nigerians send their memoranda and petitions.

The Head of State equally charged them to address key contentious issues and the draft constitution addressed the following issues viz: The principle of zoning and rotation; best way of cultivating a sense of belonging in all segments of the society; the merits and demerits of the provisions, which call for multiple vice presidents; Which constitutional provision could serve as the most effective anti-dote to future seizure of political authority other than through constitutional means; the issues of the principle of derivation as a criterion for distributing the national wealth by increasing to 13%; devolution of powers and giving more responsibility to lower tiers of government by expanding the competence of state and local governments in sectors such as education, agriculture, health, etc; creation of more commissions at the federal and state levels in the constitution; establishment of the National Judicial Commission;

establishment of a Constitutional court charged with the responsibility of handling election petitions and hearing matters pertaining to the enforcement of fundamental rights; the proportionality representation of political parties in the formation of the cabinet within a presidential system of government and how workable is the provision, which permits ministers appointed to the Federal Cabinet to continue to retain their seats in the National Assembly.

Nigerians participated in the making of the constitution based on the exigencies and circumstances of the time. The military having overstayed their welcome were desirous of handing over the reins of government to an elected civilian government. In summary, it might be said that while the 1960 Nigerian constitution was derived from the British Government by virtue of her imperial suzerainty and while the pre-independence constitutions were clearly imposed by the colonialists, and therefore, not autochthonous, the 1963, 1979 and 1999 Nigerian Constitutions were relatively autochthonous in nature since they emanated from the Nigerian people and not strictly superimposed by our colonial masters or external forces.

Even then, the continued agitation for a home-grown and indigenous constitution cannot be said to be entirely out of place. The present agitation may be linked to the perceived imbalances and lopsidedness that is thought to be brought about by some constitutional provisions. Nigerians seems to have found a scapegoat in the constitution as the architect of the myriads or litanies of woes that have bedeviled the nation lately. Thus the herders and farmers conflicts, Boko Haram and other insurgencies, agitation for creation of states and local governments, resource control agitation, issues bothering on type and style of governments, rotation and zoning of offices, revenue generation and sharing, power, indigenization, state police, lopsidedness in political appointments, immunity of public officers, etc., are all linked to the need for the making of an autochthonous Constitution

Dr. Edet is Head, Private and Property Law, University of Calabar