By Olu Fasan

The current Constitution of Nigeria is an albatross, the major obstacle to this nation’s unity, stability and progress. Thus, Nigeria needs a new Constitution. Yet, the ongoing “constitutional review” exercise will merely tinker with the current Constitution. For the legislators, only incremental amendments are possible, not a new constitution. They’re wrong!

The history of constitution-making in Nigeria shows that virtually every Constitution since the colonial area replaced its immediate predecessor. Rather than tinkering at the edges of an existing Constitution, a new one was often created.

During the colonial era, there were five Constitutions. The first, the Amalgamation Constitution, came into effect in January 1, 1914, followed by Clifford Constitution in 1922; Richards Constitution (1946); Macpherson Constitution (1951) and Lyttleton Constitution (1954). These colonial-era constitutions were, of course, imposed on Nigeria. But Nigeria’s independence Constitution in 1960 and the Republican Constitution in 1963 were negotiated by Nigeria’s ethnic nationalities.

Since then, the military made constitutions for Nigeria, starting from the 1979 Constitution created by General Olusegun Obasanjo’s regime, to the current 1999 Constitution, enacted by General Abdulsalami Abubarkar’s regime.

But all the military-era constitutions lied about their provenance and legitimacy. The preamble to the 1999 Constitution says: “We the people of the Federal Republic of Nigeria … Do hereby make, enact and give to ourselves the following Constitution.” But that’s a lie. First, “the people” didn’t make the Constitution; second, the Constitution is not “federal”.

Take the first point. Although the military always set up a constitutional committee led by a civilian, the emergent constitution ultimately reflected the predilections of the military leaders. For instance, General Obasanjo set up the 49-member Constitutional Drafting Committee, chaired by the legal luminary Chief Rotimi Williams, SAN, and later a Constituent Assembly, led by the renowned judge Justice Udo Udoma. Yet, the final Constitution reflected the say-so of Obasanjo and his military colleagues; had their imprimatur!

But a genuine people’s constitution is a product of negotiated political and constitutional settlements, of debates and political compromise, and not a closed process where the military has the final say. So, military-era constitutions cannot claim to be a product of “We the people”; and without that, they lack genuine consent, ownership and legitimacy.

The1999 Constitution’s second claim is that Nigeria is a “federal” state. That, too, is a lie. It is anything but. The military, a command-and-control institution, naturally favours a strong, powerful centre, and weak, peripheral subunits. It’s interesting that the military rejected the constitution-making philosophy and approaches of the colonialists andNigeria’s ethnic nationalities, who favoured ever-deepening regional autonomy.

For instance, although the Richards Constitution of 1946 intensified regionalism, it was suspended in 1950 against a demand for greater regional autonomy. The Macpherson Constitution that replaced it in 1951 deepened regional autonomy, while the Lyttleton Constitution of 1954 firmly established the federal principle.

When Nigerian leaders took over constitutional-making, they went for federalism underpinned by strong regional governments. For instance, the 1960 Independence Constitution created a federal union consisting of three regions, with each region self-governing in its own concerns.The subsequent 1963 Constitution went further; it gave the regions even more powers.

The point here is that the settled will of Nigeria’s ethnic nationalities, from which this country was cobbled together, is true federalism, with deep regional autonomy, not a unitary system, with an overpowerful centre. But the military, which has never been more than 500,000 people, jettisoned the 1963 Constitution, turned Nigeria into a unitary state and later gave it a constitution that undermines its core ethnic and regional foundations.

Of course, one must accept that when the military was in charge, they had to produce a constitution in order to transfer power to a civilian government. And they would do so on their own terms.

To ask them not to do that was to give them an excuse to stay in power. But once the military has handed over power to a democratically-elected government, the elected politicians must then perfect the imperfect constitution they were bequeathed and create a new constitution that reflects the will of the people, and thus has true legitimacy.

Sadly, since 1999, Nigeria’s elected politicians have failed woefully to do that. In 22 years of uninterrupted civil rule, the 1999 military-era Constitution has only tinkered with, resulting in four piecemeal amendments. But why has the deeply flawed Constitution not been replaced?

Why have the lawmakers not given Nigeria a constitution that reflects its diversity and the settled will of its people for true federalism? Well, leaders of the current Senate say the legislators’ hands are tied; they’re handicapped. But how? 

Recently, the Deputy Senate President, Ovie Omo-Agege, who is leading the constitutional review exercise, said that Section 9 of the Constitution only allowed the National Assembly to amend and not replace it. Supporting that view, Senator Opeyemi Bamidele, chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters, said: “We cannot have a totally new Constitution because the law does not grant us the power to do that.”Really?

True, Section 9 (1)stipulates the procedures for amending the Constitution, with two-thirds of the National Assembly and the state assemblies. But section 9(3) allows for amending section 9 itself, albeit with a higher threshold: four-fifths of 109 in the Senate; four-fifths of 360 in the House of Representatives. Surely, the focus of the current exercise should be to amend section 9 first to allow for a new Constitution and a referendum; and then start the process of creating a new Constitution.

The barriers to restructuring Nigeria and creating a brand new Constitution are not constitutional constraints but lack of political will. Ideally, President Muhammadu Buhari should lead the process: build a bipartisan and cross-ethnic consensus for change and send an Executive Bill to the National Assembly. If Buhari truly wants an enduring legacy, that’s what he will do. But would he? I await his “Democracy Day” speech with bated breath! 

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