By Aare Afe Babalola, SAN, CON OFR
In a recent television interview, the Deputy Senate President, Senator Ovie Omo-Agege, again, stated that the National Assembly has no power to replace the 1999 Constitution, but that the only power vested in the legislature is the alteration of the present one.
He further added that based on the memoranda received from the geopolitical zones, the following issues have been highlighted for consideration, that is: gender equity/increased participation of women and vulnerable groups in governance, the federal structure in governance and power devolution, local government administration/local government autonomy, public revenue, fiscal federalism and revenue allocation constitutional provision for the establishment of state police, judicial reform – adjudication of election and pre-election matters and other justice delivery concerns, residency and indigeneship immunity, states and local government creation, strengthening the independence of institutions like the Office of the Accountant General of the Federation, Auditor General of the Federation and Office of the Attorney General of the Federation, FCT administration, the legislature and legislative bureaucracy constitutional role for traditional rulers, among others.
While the foregoing considerations may, indeed, constitute some of the paramount issues calling for national discourse, and consequently worthy of being reflected in our Constitution, yet again, the 1999 Constitution is a faulty premise upon which these noble propositions may be properly considered. I reiterate that the 1999 Constitution deserves no amendment, but a complete overhaul – and the National Assembly is empowered to effect this. Professor ItseSagay, a foremost constitutional lawyer and the Chairman of the Presidential Advisory Committee Against Corruption, PACAC, recently reiterated his advocacy for the scrapping of the 1999 Constitution and a return to the 1963 Constitution which, according to him, had catered for most of the agitations today. He reportedly noted thus:
“My own personal preference as contained in my previous articles is that we should scrap this constitution and adopt the 1963 constitution that can contain everything that is being agitated for now. We adopt it, with amendments here and there, to make it accommodate states rather than regions, which we used to have. I think all these agitations will die down and everybody will be happy. When I was in secondary school, I knew nothing about the federal government, I only knew about Ibadan and Awolowo.
The region controlled my life from A to Z. I knew nothing about the federal government. Everything worked perfectly, beautifully and happily. So, that is what we are missing. The regions competed. Nigeria developed fast. The regions kept what they produced, sent 20 percent to the federal level, and then 30 percent to a distributable level, which was then distributed to the regions, according to their needs. And everybody was happy. We just have to go back to that. Otherwise, Nigerians will not enjoy stability.”
I could not agree more with Professor Sagay’s viewpoint. Indeed, much of the infrastructural developments which formed the bedrock of national development were a product of a healthy competition between the regions – and an equitable model for resource control and distribution, unlike what operates today. It is high time we reverted to the old, immutable standard. As it is, the 1999 Constitution is not too sacrosanct for an overhaul; but a total scrap of the Constitution in deference to the legitimate calls of Nigerians for a workable Rule Book is long overdue for implementation.
Change – the only constant variable
The great Greek philosopher, Heraclitus of Ephesus, famously noted that “change is the only constant”. It is therefore a cardinal principle of human existence that law is made for the man; and not man for the law.
Even the Lord Jesus Christ noted, in Mark 2:27 that: “The Sabbath was made for man, and not man for the Sabbath”, despite the sacrosanct nature of the Sabbath for the Jews. The need for constant change, perhaps, has been the ultimate factor for countries to enact new laws or create an entirely new political structure which conforms to their present-day realities. In the United Kingdom, the Act of Parliament (which is the primary legislation passed by the UK Parliament) permits the conduct of referendums for major constitutional issues, such as Brexit, in which a referendum was conducted in 2016 to determine the withdrawal of the UK from the European Union and the European Atomic Energy Community.
Majority of UK citizens voted in favour of Brexit and despite the daunting process, it eventually came into effect in January 2020 with the passing of the European Union (Withdrawal Agreement) Act, 2020. Likewise, in Senegal, the legislature which was initially bicameral was reformed to become a unicameral legislature when the Senate was abolished in 2012.
By all standards, Senator Ovie Omo-Agege’s position on the seeming unchangeability of the 1999 Constitution is unfounded particularly against the antecedents of Nigeria’s constitutional exodus.
History of Nigeria’s constitutional overhaul
No doubt, Nigeria is a product of a myriad of constitutions, altogether having had nine constitutions – six in the pre-independence epoch (1914, 1922, 1946, 1951, 1954 and 1960) and three after independence (1963, 1979 and 1999). The making of the pre-independence constitutions was by an order-in-council of the British monarch, while the post-independence constitutions were enacted in two ways: an Act of parliament (1963 Constitution) and military decree (1979 and 1999).
Under the 1914 Constitution, the Northern and Southern Protectorates were amalgamated under the colonial authority of the British Monarch and administered through the Governor-General, Lord Frederick Lugard. This Constitution created a Legislative Council for the colony to make laws for the Colony of Lagos alone, while the Governor-General made laws for the rest of the country.
In 1922, eight years after the first Constitution, the 1922 (Clifford) Constitution was enacted. This Constitution established a 46-member Legislative Council to make laws for the Colony of Lagos and the Southern Provinces. In addition, this Constitution introduced the British African territory and permitted Lagos and Calabar to elect their representatives into the Legislative Council.
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The 1946 (Richard) Constitution came into force after the Second World War. For the first time, Nigeria was divided into regions: the Northern, Western and Eastern Regions. Returning African veterans from the Second World War who were conscripted to fight for the British came back with a deeper understanding of self-governance and sovereignty. Generally, the 1946 Constitution established a framework for the participation of all sections of Nigeria in the legislative process, thereby guaranteeing a majority for indigenous Nigerians both in the House of Assembly and legislative council.
Subsequently, the 1951 (Macpherson) Constitution was enacted as a by-product of an unprecedented process of consultation with Nigerians. The process leading to the making of this Constitution involved Village, District, Divisional, Provincial and Regional meetings and consultations – before the national conference. For the first time, the federal system of government was established and the presence of African elected majorities in the Central Legislature and in the Regional Houses of Assembly.
In 1954, the Lyttleton Constitution was enacted. This Constitution made the regional governments independent of the central government and also established a unicameral legislature for the federal government and for each of the 3 regional governments. This Constitution made Lagos the Federal Capital Territory and established regional public services for the regions. Under this Constitution, Ministers were given specific portfolios for the first time.
When Nigeria gained political independence in 1960, the 1960 Constitution was enacted to establish a parliamentary system of government which equally established a bicameral legislature (Senate and the House of Representatives), including a House of Assembly and House of Chiefs at the regions. Legislative powers of the government were, for the first time, delineated into three categories, i.e. the exclusive, concurrent and residual.
This parliamentary Constitution recognized the British monarch as the Head of State while the Prime Minister was elected by the federal parliament to act as the head of the Federal Executive Council. However, the main challenge with this Constitution is that a Governor-General was designated as a representative of the British monarch, instead of the establishment of a Constitution which represented the independent status of Nigeria. In addition, it denied Nigeria an effective dominion over its judiciary as the Privy Council established by the British Queen was given the final appellate authority instead of the Federal Supreme Court.
The 1963 Constitution birthed the establishment of Nigeria’s 1st Republic under a parliamentary system of government. It replaced the Governor-General appointed by the British monarch with a President elected directly by members of the Nigerian federal legislature. Also, it replaced the Privy Council and conferred final appellate powers on the Federal Supreme Court.
A violent military coup in 1966 however set aside this Constitution. The First Republic was ousted by military dictatorship which lasted for 13 years, ending in 1979. General Olusegun Obasanjo ushered in the Second Republic with the promulgation of a new Constitution, the 1979 Constitution. Under the 1979 Constitution, a federal system of government was again set up comprising of 19 state governments, a Federal Capital Territory, and three arms of government.
The civilian administration of President Shehu Shagari and Vice President Alex Ekwueme who operated under the 1979 Constitution was toppled in 1983 by the military dictatorship of Generals Muhammed Buhari and Tunde Idiagbon.
After a series of other regimes – the Babangida military dictatorship (1985 – 1993), the Shonekan Interim civilian regime, the Abacha military dictatorship (1993 – 1998) – the final General Abdulsalami Abubakar military regime ushered in the 3rd Republic on 27th May 1999 with the enactment of the 1999 Constitution which still operates till today.
To be concluded…