The 1999 Constitution is Not a Fake Document!

By Femi Falana SAN

It is indisputable that the people of Nigeria were not involved in the processes that led to the enactment and imposition of all the constitutions and other laws that were promulgated by the British colonial regime. Thus, the Lugard Constitution of 1914, Clifford Constitution of 1922, Richards Constitution of

1946, Macpherson Constitution of 1951, and Lyttleton Constitution of 1954 were enacted in London and imposed Nigerians. But in order to protect the interests of the British Government and its allies at the end of colonialism, the independence Constitution of 1960 was negotiated between the departing British colonial regime and the nationalist politicians.

Even he much celebrated Republican Constitution of 1963 was a mere amendment of the Independence Constitution because it protected the interest of the indigenous ruling elite. Hence, the amendment of the Constitution carried out by the first set of parliamentarians was rather cosmetic. Specifically, the

president replaced the British Monarch as Head of Government while the Supreme Court of Nigeria replaced the British Privy Council and became the final Court of Appeal.

However, the Nigeria Police Force, the armed forces and other instruments of oppression established by the colonial regime were left intact to protect the interests of the indigenous ruling class while the post colonial economy was left in the firm grip of imperialism. The anti peoples’s colonial ordinances, which

legitimized the exploitation of Nigeria by the British government, were adopted and renacted as Acts of the Nigerian Parliament. No doubt, the 1963 Constitution recognised the relative autonomy of the Eastern, Western, and

Northern regions as each of the regions had its own constitution and managed its own affairs within the neocolonial economic structure. In 1964, the Midwest region was carved out of western Nigeria to weaken the region as the northern and eastern regions were not split.

The manipulation of the courts and security forces by the ruling party aggravated the election violence that broke out in the western region in 1964 and the brutal killing of Igbo people in the north. Thus, the

subversion of democracy and abuse of power by the chief operators of the 1963 Constitution led to a total breakdown of law and order in the country. It was under the pretext of restoring law and order that a group of young army officers led by Major Kaduna Nzeogwu seized power on January 15, 1966.

The coup plotters killed the civilian Prime Minister, Mr. Tafawa Balewa, two regional heads of government, Messrs Samuel Akintola and Ahmadu Bello, and some military officers.

The national and regional constitutions were suspended while political parties, trade unions, and ethnic

organisations were proscribed. The coup plotters were overpowered and arrested by senior officers who appointed Major General Johnson Thomas Umanakwe Aguiyi Ironsi as the Head of State. A unification decree was promulgated to abolish regional institutions and the federal system of government. There was a counter coup in July 1966, which led to the brutal murder of the military ruler, General Aguiyi- Ironsi, and the military governor of western Nigeria, Col. Adekunle Fajuyi.

The new head of State, Lt. Col Yakubu Gowon failed in resolving the political crisis. The military oligarchy ruled by Decrees signed by the Head of State. Even though the military dictators claimed to have set up the Federal Military Government, it was a unitary government in every material particular. In other

words, both Ironsi's unification decree and Gowon's supremacy decree were six of one and half a dozen of the other.

In 1967, the 4 regions were split into 12 states while military governors were appointed by the Supreme Military Council to govern them. The governors ruled the states by edicts. Regional institutions, including universities, radio, and television stations, were nationalised by the Federal Military

Government. In 1975, the Murtala Mohammed military regime appointed a group of 49 persons to draft a new Constitution for the 2nd Republic.*The Committee was headed by the late Chief Rotimi Williams SAN. At the end of the assignment, the committee produced two reports, the majority report

prepared by 47 members and the minority report prepared by two members, namely the late Dr. Bala Usman and Dr. Segun Osoba. Since the minority report advocated for a socialist state, the Olusegun Obasanjo regime rejected it and forwarded the majority report of the Rotimi Williams group for the consideration of the constituent assembly led by Justice Udo Udoma.

Even though Chief Obafemi Awolowo declined to serve in the Constitution Drafting Committee, he lauded the body for recommending the entrenchment of chapter two in the Constitution. For him, the fundamental objectives and directive principles of state policy largely reflected the ideas canvassed by

him in his book titled "People's Republic" published in 1966. However, upon the submission of the Draft Constitution by the constituent assembly to the regime, General Obasanjo single-handedly amended it

and inserted therein four statutes, i.e. (a) the National Youth Service Corps Decree 1993; (b) the Public Complaints Commission Act; (c) the National Security Agencies Act; and (d) the Land Use Act. Even though these laws were not part of the Constitution, the purpose of entrenching them in the Constitution was to ensure that they could only be amended like other provisions of the Constitution.

Thereafter, General Obasanjo enacted the Constitution (Promulgation) Decree No 104 of 1979. Thus,

the 2nd Republic was operated under Decree 104 of 1979, otherwise called the 1979 Constitution.

When the military sacked the civilian government again in December 1983, the 1979 Constitution was

suspended. As part of the preparation for the restoration of civil rule, the 1989 Constitution was written

by a Constituent Assembly led by Justice Anthony Aniagolu under the Ibarahim Bbangida military junta.

But, due to the annulment of the election won by Bashorun MKO Abiola, the 1989 Constitution never

came into force.

As General Babangida was forced to step aside, his plan to metamorphose from a military dictator to a

civilian president failed to materialise. The plan of his successor and comrade in arms, General Sani

Abacha to have himself elected as a civilian president also failed. Hence, his 1995 constitution did not

see the light of day. The last military ruler, General Abdulsalami Abubakar repealed the suspended 1979

Constitution and imposed the 1999 Constitution on the nation via the Constitution (Promulgation)

Decree No 24 of 1999. The committee that drafted the 1999 Constitution was headed by a famous

jurist, the late Justice Niki Tobi. Even though the 1999 Constitution was not prepared by a constituent

assembly, it is a replica of the 1979 Constitution in every material particular.

It is on record that the late Chief Rotimi Williams SAN once described the 1999 Constitution as a

fraudulent document for telling a lie about itself. As far as Chief Willaims was concerned, the

Constitution was imposed on Nigerians, though the preamble stated that it was made, enacted, and

given to the Nigerian people. In the same vein, Chief Wole Olanipekun SAN has insisted that the

Constitution is a fake document. With respect, the Constitution is neither fraudulent nor fake as its

authors are well known. Indeed, in several judgments delivered by the Supreme Court and other courts

since 1999, the Constitution has been described as the grundnorm of the Federal Republic of Nigeria.

Since the Constitution protects the interests of the ruling class, the National Assembly and the Houses of

Assembly of the 36 states of the Federation have resorted to regular amendment of some provisions of

the document. The said amendments have also received judicial imprimatur. To that extent, it is not

legally correct to say that the Constitution is fraudulent or fake.

In making a strong case for a new Constitution that will reflect the democratic wishes of the Nigerian

people, it ought to be pointed out that there are some provisions of the 1999 Constitution that cannot

be wished away. They include chapter two (sections 13-24), thereof culled from the 1979 Constitution,

which contains the fundamental objectives and directive principles of state policy. Despite its limitations

and contradictions, the chapter provides for participatory democracy, adequate security and welfare for

the people, adequate housing, employment and payment of unemployment benefit for unemployed

people, payment of a national living minimum wage and pension, right to education at all levels and

right to health.

In particular, section 16 of the Constitution provides that the resources of the nation shall be controlled

by the government and be equitably distributed among the people and that the commonwealth shall

not be concentrated in the hands of a few people or a group. The provisions constitute the core of the

socioeconomic rights of the Nigerian people. Even though the provisions are made not justiciable,

several laws have been enacted by the national assembly to actualize certain provisions of chapter two

of the Constitution. In a number of public interest cases, the courts have upheld the rights of Nigerian

people under such welfare laws. It is interesting to note that the members of the 2014 National

Conference unanimously recommended that the fundamental objectives and directive principles be

made justiciable in the Constitution.

Under the defunct military junta, the central military government took over the control of the national

economy. By fiat, the principle of derivation was jettisoned while the states were run as extensions of

the central military government. The 1999 Constitution has challenged the over absolute control of the

central government in the management of the national economy. To that extent, no constitutional

arrangement can jettison section 162 of the Constitution which states that “the principle of derivation

shall be constantly reflected in any approved formula as being not less than thirteen per cent of the

revenue accruing to the Federation Account directly from any natural resources”.

This is unlike section 140 of the 1963 Constitution which merely provided derivation of “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.” The point that I am struggling to make is that the 13 percent derivation from

revenue in section 162 of the 1999 Constitution is much higher that the 50 percent derivation from

royalties and rents in the 1963 Constitution. Furthermore, the states that are entitled to the 13 per cent

derivation are equally entitled to a share in the monthly statutory allocations distributed to the three

tiers of government by the Federation Account Allocation Committee.

The campaigners for restructuring have argued that the development of the regions before military rule

was based on the 50 percent derivation applicable under the 1963 Constitution. This is misleading as the

development of the regions was based on the huge revenue derived from agricultural products like

cocoa, cotton and palm oil. Agriculture that was the mainstay of the economy got a boost from the

regional commodity boards which protected the interest of farmers. But the boards were abolished in

the late 1990s as part of the conditionalities of the Structural Adjustment Programme. Unaware that the

Commodities Board Act has not been repealed, Vice President Shetima recently announced that the

federal government would soon set up a new National Commodity Board.

Even though President Buhari was opposed to restructuring, the devolution of powers recorded under

his regime has been the most profound since 1999. Items like electricity, railways and prisons which

were in the exclusive legislative lists have been trasferred to the concureent legislative list. The

implication is that states have been empowered to legislate in these areas for the overall development

of the country. The financial autonomy of the state legislature and judiciary has also been restored by

another constitutional amendment. No doubt, solid minerals are in the exclusive legislative list. But

state governments and individuals are given licences to mine them and pay royalties to the Federation

Account.

Before then, licences for oil blocks were awarded to a few registered corporate bodies and state

governments which were required to pay signature bonus and royalties to the Federation Account. The

trend is going to continue as the Bola Tinubu administration has already awarded many oil blocks and

granted licences for solid minerals. Plans have also been concluded to amend the Constitution to pave

way for the establishment of state police in response to the worsening security crisis plaguing the

nation.

It is pertinent to note that the main disputed area among the political class is whether the Constitution

should provide for a presidential or parliamentary system of government or whether the country should

have strong regional governments and a weak centre. A fresh agitation has also arisen in the Niger Delta

region for resource control in view of the decision of the federal government to allow state

governments and private companies to mine solid minerals and pay rents to the Federation Account. In

other words, the oil and gas producing communities have demanded to control the resources and pay

rents to the Federation Account.

In view of the foregoing, it is crystal clear that the members of the political class have resolved not to

discard or throw away the 1999 Constitution because it protects their class interest. This explains the

regular amendments of the Constitution by every session of the national assembly and houses of

assembly of the states. In fact, each house of the 10th National Assembly has set up a constitution

review committee for the purpose of further amending the Constitution. It is expected that the review

will lead to another alteration of the Constitution.

No doubt, the country needs a new and popular Constitution prepared by the accredited

representatives of workers, women, youths, physically challenged people, and other interest groups. But

a new Constitution that is democratic, inclusive, and transparent can only emerge from the struggle of

the Nigerian people. Therefore, it is indubitably clear that without a revolution to herald a new legal

order, no new constitution will emerge in Nigeria.