Wanted: A new constitution for Nigeria

on   /   in Law & Human Rights 7:21 pm   /   Comments

By Theo Nkire

Introduction

The amending of Nigeria’s Constitution has engaged Nigerians of all shades of opinion over the years.  It was a major preoccupation of the Sixth Assembly (2003-2007).  It is a major issue among political parties, university teachers, students, the professions, civil society. On her part, the Nigerian Bar Association considered it so important that she set up a Committee to review the document.

What Are The Issues?
The issues are legion. They are as many and as varied as there are protagonists. To the Governors, the issues are Revenue Allocation and State Police. To ALGON it is local government autonomy. The average human rights activist wants introduction of true federalism; a reduction in the powers of the Central Government and an increase in the powers of the States and Local Governments.  Many Nigerians want removal of the immunity clause for the President and the Governors.  Everyone wants a reduction in the level of corruption; greater accountability; improved security, a reduction in violent crimes.  We all want good roads, a reliable power supply, decent schools and hospitals, clean drinking water and jobs. Nigerians want every subject under the sun included in the Constitution.  They believe the Constitution can provide for their every need. I do not think so.

What Is A Constitution?
A Constitution is the basic law of the land. It is the foundation on which all other laws are founded. It is a framework, not the whole body of laws. In its essence it must reflect the very ethos of the people; their norms and values, their belief systems; their culture. To fulfill its proper role therefore a Constitution must be simple, short, concise, and easy to read and to understand.  It is the grundnorm and must therefore, be seen to be autochthonous, that is original; given by the people to themselves.

What Do We Have?
The Nigerian Constitution 1999 (As Amended)

As many have observed, the Nigerian Constitution 1999 opens with a lie about itself.
“We the people …DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES the following Constitution.”  We, the people of Nigeria did not make this Constitution.  Our military did.

Our Constitution has 8 chapters, 320 sections and seven Schedules. It covers 166 pages typed single spacing.  By any standard it is a lengthy document and as Constitutions go, it is not among the shortest.  By comparison, the USA Constitution has 7 Chapters (called Articles) and 24 Sections. It has been amended only 27 times in its over 300-year history.  The French Constitution has 18 chapters (called Titles now 17 with one repealed) and 89 Articles.  The Japanese Constitution (1946) has 11 chapters and 103 Articles. Nearer home, the Liberian Constitution 1986 has 13 chapters and 97 Articles. They are examples we can follow.

However, Nigeria is not alone in the list of countries with lengthy Constitutions. Ghana has a Constitution of 26 chapters and 299 sections. South Africa’s Constitution has 13 chapters and 230 Sections.  Because of its length, South Africa’s Constitution adopted in 1996 had by 2003 (only seven years later) been amended 13 times. The Nigerian Constitution is still longer than any of these.

My Thesis
The first four chapters of our Constitution capture the true essence of that document.  The Nigerian Constitution should have only four chapters (and 46 Sections) namely, the General Provisions (chapter One), the Fundamental Objectives (chapter Two), Citizenship (chapter Three); and Fundamental Rights (chapter Four).  Indeed, the chapter on Citizenship can change places with that for Fundamental Objectives so that Citizenship can be chapter Two while Fundamental Objectives become chapter Three. Every Nigerian hopes the Fundamental Objectives should metamorphose into Fundamental Rights.  So their proximity in that sacred document will further assure that hope.

Over time, Nigerians will be happy to see items in our list of Objectives move, one after the other, from our new chapter 3 to Fundamental Rights in chapter Four such that, every right will be fundamental and enforceable!  The frequent clamour for amendments to the Nigerian Constitution can, to a large extent, be related to its size. The last four chapters of our Constitution namely, the chapter on the Legislature (chapter Five), the chapter on the Executive (chapter Six), the chapter on the Judicature (chapter Seven) and the chapter on the FCT and the General Provisions (chapter Eight) do not belong to the Constitution.

A section of the Constitution in Chapter One is already devoted to each of those Chapters. For example, Section 4 deals with the Legislature (Chapter 5); Section 5 with the Executive (Chapter 6) while Section 6 deals with the Judiciary (Chapter 7).  Section 3 takes care of the FCT. Besides, each of those chapters or part thereof, should constitute an Act of the National Assembly or law of a State. There is in existence today an Act of the National Assembly on virtually every subject to be found in any of those four last chapters.

A cursory look at Section 6 and Sections 230-296 (chapter Seven, the chapter on the Judicature) will convince any objective observer.

Though each of the ten Courts listed in Section 6(5) beginning with the Supreme Court has a portion of chapter Seven dedicated to it, each is today the subject of a separate Act of the National Assembly or the law of a State.

We today have the Supreme Court Act, the Court of Appeal Act, the Federal High Court Act, and the High Court of the FCT Act.  At the state level, each State has a law establishing the State High Court, the Customary Court of Appeal, and the Magistrates Courts. Each of these Acts or laws is a repetition of the provisions of chapter Seven or part thereof.  What then is the essence of chapter Seven?

The same goes for the other three chapters – chapter Five, chapter Six and chapter Eight.  For example, there is the FCT Act – establishing the FCT, Abuja.

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