Column Monday Column • Created June 7, 2021 04:03

Reviewing the constitution, again

There is something to be said about a country which changes its constitutions or alters their contents as frequently as we do. Few countries have had as many aborted constitutions as Nigeria, six of them already since independence, or one per decade. And yet, we are right at it again, reviewing the 1999 Constitution for […]

Reviewing the constitution, again

There is something to be said about a country which changes its constitutions or alters their contents as frequently as we do. Few countries have had as many aborted constitutions as Nigeria, six of them already since independence, or one per decade. And yet, we are right at it again, reviewing the 1999 Constitution for the millionth time in the 20 or so odd years it has been in existence.

The United States, whose constitutional framework we borrowed, if without due credit, has operated its constitution since 1789. But just 27 amendments have been made to the original since then, 10 of them in 1791. By contrast, even the keenest observer of Nigeria’s constitutional development may have lost count of the alterations we have made to the 1999 Constitution in just 20 years. A recent Daily Trust analysis shows that over 40 items in it have so far been amended, not to mention the “dozens” of proposals rejected.

One reason why we appear so uncomfortable in our own constitutional skin is the rhetoric around its origin. Politicians, intellectuals, and the media, particularly those from certain sections of Nigeria, like to lampoon the constitution for being a ‘brainchild of the military’, and therefore undemocratic, as they would fancy a constitution resulting from some constitutional convention or a so-called ‘Sovereign National Conference’. This thinking, in my view, is indicative of too much of textbook knowledge.

First, all democracies are born of dictatorships of some kind: monarchies, one-party systems, colonial empires, military regimes and so on. Today’s democracies were once dictatorships. And given what we know of authoritarian systems of the past hundred years in Asia, Eastern Europe, Latin America and even within Africa, Nigeria’s military governments were in fact much closer to a democracy, in content if not in form. So, the fact that our present constitution is a legacy of our military past is not a sufficient condition or explanation for why it is ‘bad’.

Moreover, the underlying premise that only a democratic process such as a national conference of elected delegates can result in a democratic constitution is also not only false but betrays scant attention to constitutional history, even right here at home. As philosophers know only too well, vice begets virtue as easily as the other way around. A military government can give us a workable constitution, just as a constitutional convention can give us anarchy. After all, the ‘democratic’ revolution in late 18th century France led, not to a democratic constitutional order, but to Napoleon’s empire, the mother of all authoritarianism. So there is no shame nor blame for the military origins of our constitution.

Besides, the current constitution is not exactly as ‘military-midwifed’ as is widely assumed. The 1999 Constitution, on any serious historical reading, is a legatee of all the colonial and post-independence constitutions we have had to date, for, each new constitution has kept something of the old ones, and is thus a product of all the constitutional conferences and conventions we have had. Unlike elections in which the current generation elects new leaders, a single constitutional convention, however, removed from the present, can be sufficient to build upon across generations.

More specifically, the 1999 Constitution is just an elaborate copy of the 1979 Constitution, which itself followed years of work by a 49-member Constitution Drafting Committee and an elected Constituent Assembly. And even though it ditched the parliamentary system of the First Republic, its other provisions retained large swathes of the 1960 and 1963 Constitutions, themselves by-products of previous such constitutional conferences in Lagos and London. So, the 1999 Constitution is as deeply Nigerian as the whole country itself, not merely a military imposition. We can amend it as we see fit but its military past is not one of its problems.

Beyond its military origins, there is the argument that the 1999 Constitution is plagued by too many structural afflictions, not least the idea that it is too ‘unitary’ to enable independent development of the subnational units. True, there is a meaningful point in the overall structuralist argument. Unfortunately, the rhetoric around it, the dominant topics of attention in the debate, and the proposed cures for the affliction all tend to be rather bland, confusing and unhelpful, or all three.

First, much of the structuralist debate is laced with dog-whistling against northern Nigeria as simply the problem that others must avoid, or as the region feeding fat on the resources of the south. There is little truth in this kind of thinking, of course, but it remains a dominant narrative. It is, to give just one example, the whole point of an editorial series The Guardian has been running weekly since October last year titled “Federalism is the answer — after all”.

But the reality is that as far as oil wealth is concerned, more than 90 per cent of it is generated from just three states: Akwa-Ibom, Rivers, and Delta. All the other states depend significantly on oil proceeds from these three, however much political expediency tells us otherwise. And if truth be told, no state in Nigeria has depended, and still depends, on the federal government than Lagos, Nigeria’s so-called most economically viable state.

Second, in the endless search for the ‘perfect federalism’ for Nigeria, proponents of the structuralist argument focus on the same bland topics, principally state police. No doubt, our current federal police work far below even minimal expectations. But the reason for this has little to do with our federal structure. There are many countries, even federations, where the federal police are the only or the main police force, and yet they work. Nigeria’s policing structure is neither unique nor unusual.

Moreover, the state police argument presupposes that other institutions in the states like schools, hospitals and ministries, work better than federal ones. There is no evidence of this anywhere in Nigeria. In any case, we now have the official Amotekun in the southwestern states and the unofficial Eastern Security Network in Igboland. Are they faring any better than the Nigeria Police?

Third, many of the proposed solutions to the structuralist problem are downright confusing. In its editorial of 4th June 2021, the Punch newspaper dismissed the current constitution and calls for a return to the four region structure in the Constitution of 1963. Writing, just a day before, in The Guardian, the veteran columnist, Dare Babarinsa, called for a return to the 12-states of 1967. Meanwhile, in the zonal hearings of the Senate constitution review, Nigerians across the entire country are calling for the creation of more states. So which is which?

Perhaps, the problem is not so much the constitution but the constituents. On the philosophical question of what political systems work best, constitutional structures matter, but more important still is human action. Perhaps the real question is how much effective power each citizen has to lead the life they value, not the geopolitical distribution of it. Perhaps the question is not how much each state receives, but how much of that is redistributed to the citizens by way of public services. There must be a reason why even countries with a unitary system are not rushing to change it. Perhaps, it is time we focused attention on these.

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