Constitutional Amendment: Way Forward

By Ayo Obe - updated: Monday 16-02-2009

David Mark, Senate PresidentWhen one contemplates problems such as those in the Middle East, it is easy to get really exasperated with Nigeria. In the Middle East, the problems are so enormous, so seemingly intractable.

But here in Nigeria, with everything apparently in our favour, we seem to take a perverse delight in refusing to follow a sensible path that would more than provide for the needs of everybody. We seem to prefer to do the wrong thing in order to grasp at the most temporary, illusory and mundane gains. A few examples from our recent past are enough to highlight this tendency; and it is against this tendency that we have to interrogate the issue of whether constitutionalism — tinkering with, amending or completely replacing 1999 Constitution of the Federal Republic of Nigeria — can, indeed, lead to the re-invention of the Nigerian state.

The period since the death of Sani Abacha in June 1998 provides numerous examples of the ‘What is the worst thing that we can possibly do in the circumstances?’ preference in Nigeria.

It is the June 12, 1993 presidential election that remains the classic example of this insistence on adopting the least wise, least beneficial and least effective option. If Ibrahim Babangida had had sufficient personality to understand that acceptance and enforcement at that time, of 1993 result was not only what was demanded by the constitution that he had brought about and that his own insistence that this country should follow that constitution would not only have strengthened that constitution, but also, that such enforcement would have made it more likely that when the time came, the victor in that contest would also have to bow to the demands of that constitution, imagine how different our nation’s history might have been. Certainly we would not have to be listening to lectures about how much more political maturity they have shown in Ghana, and what lessons we need to learn from Ghana, or Sierra Leone, among others.

Babangida’s political experimentation, with its enforced two-party formula, was hardly the most democratic answer to Nigeria’s problems, but it was certainly an attempt to re-invent the Nigerian state by means of its constitution.

From another perspective, the Third Republic could also be seen as an attempt by the military interlopers to make up for what might have been a natural political development into two ideology-based parties, as appeared to be emerging in Nigeria during the Second Republic, even despite the 1983 ‘moonslide’ — the massive electoral fraud that led to a ‘victory’ by the ruling National Republican Congress. Perhaps Babangida felt that his proposed Third Republic two-party state could make up artificially for the 10 year interruption that the military coup of 31 December, 1983 had caused in Nigeria’s political development.

Artificial political engineering to be sure, but that in itself ought not to have condemned it to failure. A farmer or a horticulturist may interfere with or hasten evolution by crossing a peach with a plum to produce a nectarine, but once it ‘takes’, the planted seed of that nectarine can produce nectarines in the way that nature intended. So the artificial nature of the engineering that produced the Third Republic’s two parties need not necessarily have condemned the Third Republic to the disaster that Babangida precipitated when he cancelled the declaration of the results of the June 12, 1993 election.

Indeed, the (Babangida’s) forced marriage that produced strange bedfellows allowed Nigeria — long before Barack Obama was out of political short knickers (so to speak) — to vote for a candidate across the country without regard to factors such as religion or ethnic origin (which is our own equivalent of the race factor in the United States), or deliberately refusing to allow those factors to dictate our electoral choices.

It is impossible to know what might have been Nigeria’s political development had the military not illegally seized power at the end of 1983, thereby illegally truncating the Second Republic. The judicial process by which the ‘moonslide’ of 1983 was being challenged offered only patchy correction the gross fraud that had been perpetrated, particularly in the Court of Appeal. The Court of Appeal, Jos division held thus,

“A respondent who fails to file an answer neither admits nor denies anything. He simply fails to join issues.”

The Court of Appeal went on to review the copious evidence that had, despite the failure of FEDECO, declared winner to file any defence, been led, and proceeded to reverse the decision of the Election Tribunal to give judgment in favour of the FEDECO-declared winner. The Buhari-Idiagbon coup denied the Supreme Court the opportunity of correcting that most egregious error.

The Second Republic that was terminated in December 1983 had been ushered in on October 1st 1979 with the adoption of the 1979 Constitution. This presented itself as the fruit of the deliberations of a ‘Constituent Assembly’ which had been convened by the Obasanjo administration, and indeed, Justice Udo Udoma, who had chaired the ‘confab’ insisted that it was, on the whole, a genuine expression of the wishes and desires of ‘We the people’ of Nigeria, ‘military meddlesomeness notwithstanding.’

But in fact, even without that ‘intermeddlesomeness,’ the 1979 Constitution was a reflection — not of the wishes and desires of the Nigerian people — but of the wishes and desires of the military dictatorship that ruled Nigeria at the time. We recall that the Constituent Assembly was convened to discuss a draft Constitution which had already been prepared. The document was the product of the ‘50 Wise Men’ the constitution Drafting Committee chaired by Chief Rotimi Williams. The draft produced by the CDC represented the most massive re-invention of the Nigerian state that the country has witnessed in its short history.

Instead of a parliamentary system, and a country where the regions or states had a great deal of autonomy, their own governments and more particularly, their own constitutions, we now had a dressed up unitary system under which everything revolved around the Federal Government headed by an executive president. Before 1979, or rather, up to the time of the January 1966 military coup, the only general election — involving the direct votes of the people — that Nigerian’s head of government had to go through was the one in his local federal constituency. He emerged as prime minister through the election of his party or similarly elected members of parliament, primus inter pares, as it were.

After 1979, Nigeria had a president elected by the whole country, who was expected to form his government — not from elected representatives but from his own choice of whoever he wanted and could get past the Senate confirmation process. A similar re-engineering occurred at the level of the federating units. The chief executive of each state was no longer a member of the legislature, selected by the ruling party, but must secure the votes of the registered voters in that state.

In theory, this ought to have resulted in a more representative democracy, and there are numerous points on each side in favour of the parliamentary versus presidential systems of government ( one is much less costly while the other allowed the gross discrimination against women enshrined in the Federal and Northern Region Constitutions to be thrown into the dustbin of history), but we must admit that the shift from the parliamentary system to the presidential represents a radical departure; a massive re-invention of the Nigerian state.

Nigerians have never been told where the instructions to the CDC came from, or why the CDC jettisoned the parliamentary system for the presidential and almost completely emasculated the federating units, but if we remember that Nigeria had emerged from a civil war which the military apparently believed to have been facilitated by the strength and independence of the regions (even if these were not the actual causes of the civil war), you will understand why it is suggested that the 1979 Constitution, which did away with much of that strength and independence, was a reflection of the wishes and desires of the military rather than that of the Nigerian people.

Ayo Obe, a lawyer and human rights activist, delivered this lecture recently in Lagos.
(To be continued)