Process and content issues in constitutional amendment

In responding to the challenge of changing societal dynamics and using the instrumentality of the constitution to tackle the said challenges, political leaders both at the Executive and legislative arms must at all times act responsibly in leading the process for constitutional amendment. This requires a clear sense of patriotism and nationalism and does not […]

In responding to the challenge of changing societal dynamics and using the instrumentality of the constitution to tackle the said challenges, political leaders both at the Executive and legislative arms must at all times act responsibly in leading the process for constitutional amendment. This requires a clear sense of patriotism and nationalism and does not permit playing to the gallery and putting personal and selfish interests at the centre of constitutional amendment. So doing will inexorably mean jeopardising the present and future of the country.

The National Assembly, as the tribune of the people must also be responsive to the demands of the people for constitutional alteration and changes to the law. In so doing, the constitutionally assigned drivers of the process must not necessarily be the engineers and initiators of constitutional alteration. While the National and State Assemblies are the main drivers of the process of constitutional alteration, it is the Nigerian people that are the ultimate repositories of power and by necessary implication are the licensing authorities for the mandate being exercised by the National Assembly. The implication is that all the organs of government and the Nigerian people must all draw and derive inspiration from the provisions of the Constitution and must on no account circumscribe the mandatory provisions of the constitution on how the constitution can be amended.

The Nigerian people, the National Assembly, the Executive and all the stakeholders must also be clear on the process that will guarantee inclusivity in the process of constitutional amendment and reconnect the Nigerian people with the process.

It is  clear that the provisions of sections 8 and 9 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) relating to the process of amending the constitution, state creation, creation of additional Local Governments and boundary adjustment of existing states and local governments are very cumbersome and some consensus should be built within the National Assembly, the Executive and the key stakeholders in the nation on acceptable minimum requirements for amending the constitution and carrying out amendment of other issues listed in section 8 of the constitution.

All the stakeholders must also be clear on the process and mechanics of involving the people in the process of constitutional alteration and putting ownership of the process at their door steps.  Will it suffice to convoke public hearings in the six geopolitical zones and the Federal Capital Territory, Abuja? Will a referendum be the panacea in domiciling sovereignty and ownership of the document with the Nigerian people? Must the National Assembly conclude the assignment of constitutional alteration and submit the said document to a National Conference or any conference by whatever name called? These are issues the National Assembly should settle as the process progresses.

Content wise, it is clear that an incremental, piece meal, targeted and clustered approach will guarantee the successes of the present efforts at amending the constitution. The 1st amendment to the Constitution of the Federal Republic of Nigeria fundamentally clustered issues with a bearing on the electoral process and amended them. The 2nd alteration dealt with the issue of timelines in the electoral process only, while the third alteration established the National Industrial Court as a superior court of record in Nigeria

This is in contrast to what obtained from 1999 to the successful amendment of the constitution in 2010. Lest we forget, it is worth recapping that on the 19th day of October 1999 the Government of President Olusegun Obasanjo set up a Presidential Technical Committee on the Review of the 1999 Constitution. The Committee called for and received memoranda from civil society groups, political parties, organised private sector and other individuals. It also organized public hearings and thereafter submitted its report to the government in February 2001. The government processed the report into A Bill for An Act to provide for the Amendment of the Constitution of the Federal Republic of Nigeria; 1999 and for Purposes Connected Thereto” and submitted the Bill to the National Assembly in 2003.

Unfortunately, the Bill expired with the life of the National Assembly in 2003 as the harmonization Committee of both Houses of the National Assembly did not conclude work on it before their dissolution.

The National Assembly elected after the 2003 general elections again on the 30th day of October 2003 set up its own Joint Committee on the Review of the 1999 Constitution. Lack of funds and other political considerations aborted the efforts of the National Assembly at amending the constitution.

Again, on the 21st day of February 2005 the Federal Government set up the National Political Reform Conference. The question of revenue allocation, sincerity of the government and attempts to smuggle in a third term in office for the President bogged down the proceedings of the Conference. The report of the Conference with its far reaching recommendations is now part of the documents in the archives.

In September 2005, the National Assembly made one last ditch effort at amending the Constitution of the Federal Republic of Nigeria 1999 and thereafter presented for first reading The Constitution of the Federal Republic of Nigeria 1999(Amendment) Bill, 2006. Nothing came out of these efforts until the life of the National Assembly expired in 2007

The point here is that similar issues must be clustered together and presented as a single Bill before the National Assembly. Contentious and less contentious issues must also be separated and presented differently. Issues with differential numbers for their passage must be separated and presented differently. This is because if these issues are presented together the politics of one issue may lead to the death of the entire amendment. This is said because, the process of State Creation and the creation of additional Local Government under section 8 of the Constitution are completely different from the process of amending other provisions of the Constitution under section 9 of the same constitution. Those agitating for state creation and the creation of additional local government must therefore be advised to go and conform to the provisions of section 8 of the constitution and come separately. This is said on the ground that there is a mixture of law and politics in the issues of state creation and the creation of additional local governments. Without a consensus at the political level, no new state can be created in Nigeria.

Issues that Nigerians agree on must be tackled without overheating the polity includes constitutionally agreed tenure for Local Governments, the scrapping of the State/Joint Local Government Account, strengthening the judiciary, Mayoral Status for the Federal Capital Territory Administration, Devolution of Powers to the States and residency and Indigene Rights, taking out the land Use Act, NYSC Act and the Code of Conduct from the Constitution and issues relating to gender and special groups.

The contentious issues like the creation of State Police, role for Traditional Rulers, recognition of the six geopolitical zones, Fiscal Federalism and Immunity Clause should be taken separately.

The National Assembly should therefore separate, segregate and cluster issues requiring constitutional amendment based on the constitutional requirements for their amendment. The National Assembly should separate contentious and non contentious issues and put them in separate baskets so that contentious issues do not subsume issues on which the Nigerian people have achieved some level of consensus.

Barrister Okoye is the Executive Director, Human Rights Monitor