Nigeria’s constitutional reform process: The quest for a people-driven constitution
The Nigerian National Assembly has approved a number of constitutional reforms, and rejected some crucial amendments proposing devolution of power and quotas for the representation of women in the highest echelons of power. While the proposed changes could limit executive discretion, enhance the autonomy of local governments and state legislative assemblies vis-à-vis state governors, the reform process was conducted within the confines of the legislative chambers with no meaningful opportunity for popular and civil society consultation. These deficiencies have triggered suggestions for a national conference to engage in a comprehensive and participatory reform process– writes Idayat Hassan.
Many Nigerians consider the 1999 constitution military-driven and that the reference to ‘We the people’ in the constitution does not truly represent them. Various actors have therefore been advocating for change. Nevertheless, other than the first, second and third alterations to the 1999 constitution enacted during the Sixth Assembly (2007-2011), significant amendments have not been made. The Seventh Assembly (2011-2015) undertook a constitution review process, but it ran into a logjam despite the huge amount of state resources deployed into the process. The efforts represented the first genuine participatory process in constitution making since the country’s return to democracy with public hearings held across the six geo-political zones of the federation at both constituency and zonal levels. Nonetheless, one of the amendments proposed the removal of presidential assent from the process of constitutional amendment. Former President Goodluck Jonathan vetoed the amendments. Since all the amendments were submitted as a single bill, Jonathan refused to grant his assent to all the changes. Facing the threat of legislative override of the veto, Jonathan dragged the National Assembly to the Supreme Court to annual the amendments for failure to comply with the required supermajority. The Supreme Court directed the maintenance of the status quo, restrained the National Assembly from overriding the veto, and ordered the President and the Assembly to resolve their differences over the issues, which the Court said were simple. The saga occurred a few days to the expiration of Jonathan’s administration, and the veto was not overridden, thereby leading to the lapse of the amendment bills without the Court passing final judgment.
The Assembly adopted a piecemeal approach to this constitution review process, with each proposed amendment presented in separate bills.
Taking a cue from the last experience, the Eighth Assembly (2015-2019) commenced the review process with the establishment of two separate ad hoc committees in the House of Representatives and the Senate in January 2016. The Assembly decided to adopt a piecemeal approach to this constitution review process, with each proposed amendment presented in separate bills, to avert the fate of the last amendment proposals that were rejected en bloc. A total of 33 bills, some of which bundled together related bills making the total 46 bills, covering a range of issues were eventually considered. On 26 and 27 July 2017, the Senate and House of Representatives respectively considered and voted for the passing of 41 distinct bills. The approved bills must still be endorsed in 2/3 of the state legislative assemblies (24 of the 36), before they are sent to the President of the Republic for his assent.
The amendments must still be approved by 2/3 of the state assemblies as well as be assented to by the President.
Although there are grey issues that have not been addressed, the proposed amendments should be commended as a step in the right direction. Some of the most laudable amendments include the reduction of eligibility ages to run for office, the introduction of independent candidacy, timelines for the appointment of commissioners and ministers, enhanced autonomy for local governments and state legislatures vis-a-vis the state governor, and the allocation of funds to the state judiciary as a first line charge from the consolidated account. Nevertheless, crucial proposals including quotas for the representation of women in the national and state cabinets, the devolution of powers to the states, and the separation of the office of the attorney general from the ministry of justice failed. The proposed amendments do not also include some major reforms approved in the Seventh Assembly, such as guarantees of some justiciable socio-economic rights. Moreover, the political actors dominated the reform process, with few opportunities for genuine popular and civil society engagement.
Proposed amendments related to the electoral process
Currently, individuals may only run for elected office if they are members of a registered political party. One of the proposed amendment provides for the introduction of independent candidacy in local, state and federal level elections. The proposal was also introduced in the 2010 constitution amendment process but was rejected by the state houses of assembly. Despite consensus at the federal government level, there is no guarantee that state legislatures will approve the proposal this time. If it passes, the amendment will be in-line with the decision of the African Court on Human and Peoples’ Rights which found the Tanzanian constitutional ban on independent candidacy incompatible with the African Charter.
The proposed amendments would introduce independent candidacy, reduce the age limit to run for political office, and empower the Electoral Commission to deregister political parties.
The reduction of the age of eligibility to run for office, popularly referred to as the ‘Not Too Young to Run’ bill, was one of the most advocated for issues in the ongoing constitution amendment process. The bill seeks to reduce the minimum age to run for the presidency from 40 to 35, for state governorship from 35 to 30, for the Senate from 35 to 30, for the House of Representatives from 30 to 25, and sets the minimum age for membership to state houses of assembly at 25. While the proposed amendment is a welcome development, it is unlikely to generate immediate results for inclusion unless conscious efforts are made in engaging young people in the democratic process. A quick review of the constitutions of the 15 member states of the ECOWAS reveals that over ten countries have the eligibility age for running for president at 35 years, which falls in the youth bracket, with the remaining 33% having the eligibility age pegged at 40 years old. However, the average age of a president in the region is 64.5 years. The continuous marginalization of the youth in occupying elective positions such as the presidency needs to be interrogated beyond age barriers and to the impact of socio-political and economic factors in each context.
In response to the judicial invalidation of a provision of the Electoral Act empowering the Electoral Commission to deregister political parties that fail to win any contested seat for federal and state executive and legislative organs, one of the proposed amendments seeks to constitutionalize the invalidated statutory provision. The Court of Appeal had ruled that the Constitution did not require political parties to win in elections to be operational. If it passes, the amendment would essentially reverse the decision of the Court. The procedure is intended to reduce the number of parties on the ballots and to promote institutionalization, and is likely to disproportionately affect small and new parties.
Enhancing autonomy of state and local authorities
The proposed amendments establish a special/dedicated funding account for local government. They also provide that only democratically constituted local governments may access allocation of funds. These amendments will guarantee the democratic existence of local government and possibly development at the local level. Currently, the state and local governments maintain a joint special account. This joint management of account whittled down all the powers of local government as the states not only refuse to appropriate monies to this tier of government, but also have on occasions failed to conduct elections at the local government level on the ground that elections are not feasible due to resource constraints or alleged security concerns. If the amendment passes, local government will have direct access to their allocations and this may promote local development.
Some of the amendments would enhance the autonomy of local governments and empower state legislators vis-a-vis governors.
While the above proposal will enhance the autonomy of local authorities at the expense of the states, the National Assembly also approved an amendment that will ensure that state legislators obtain their allocation as a direct line charge from the federal consolidated account. Currently, state legislatures receive allocation at the whims of governors with the attendant effect of the state legislatures tied to the apron string of the state governor. If passed by 2/3 of the states, this provision may engender the independence of state assemblies.
Limiting executive discretion
A number of the proposed amendments will have the effect of reining in executive discretion both at the federal and state levels. One of the proposed amendments seeks to remove the veto powers of the president over constitutional amendments. This is crucial as the last amendment package failed after then President Jonathan vetoed the proposed amendments.
Another proposal reduces the period during which the President may withdraw funds from the consolidated account after the expiration of the annual budget from six to three months. While the Nigeria fiscal year ends in December of every year, it has become a norm for budgets to be signed late into the fiscal year. For instance, the 2017 budget was only signed into law on 12 June 2017, and the 2016 budget on 5 May 2016 after several allegations of budget padding. The new requirement will hasten the adoption of budgets.
The proposed amendments would remove presidential veto of constitutional amendments, constrain executive discretion in the approval of budget and the appointment of cabinet members, and limit their terms.
One of the proposed amendments requires the President/governors to appoint ministers and commissioners within 30 days of inauguration to form executive councils at the federal and state level. There have been several instances where elected officials do not timely make these necessary appointments. For instance, it took more than two years for Governor Aregbesola of Osun State to appoint a cabinet after winning his second term. According to him, state finances could not cater for the payment of commissioners given the lack of resources. Similarly, President Muhammad Buhari, when asked why he was yet to name minsters five months into his administration, retorted that ministers are only there to ‘make a lot of noise’. The 1999 Constitution only requires the President to ‘appoint at least one Minister from each State, who shall be an indigene of such State’, without providing for a timeline. In addition, the proposed amendments also require the President/Governors to add portfolios to the list of appointees sent for Senate/State House of Assembly confirmation. Currently, names are just sent to the relevant house for clearance with no portfolio attached. If passed, the proposed amendment will effectively allow better assessment of candidates and ensure qualified persons are given the right portfolio.
There is also a proposal that seeks to ban anyone who succeeds a president or a governor and completes the tenure of such president or governor from contesting for that same office more than once. In effect, under the envisaged amendment, when a deputy succeeds a president or a governor, the person is considered to be spending the first of the two-term constitutional limit, regardless of the length of the replacement period. The proposed amendment forecloses a situation that involved former President Jonathan following the death of Late President Umar Yar’Adua. His deputy, Jonathan, completed the remaining tenure between 2010 and 2011, participated in the 2011 election and won a four-year term, and still ran for election again in the 2015 election, which he lost. The proposed amendment would foreclose such a scenario.
A proposed amendment would guarantee immunity of legislators, without excluding responsibility for criminal offences.
Another amendment proposes to include all past Senate presidents and speakers of the House of Representatives as members of the Council of State provided they were not removed from office through impeachment. The bill seeks to promote the inclusion of all arms of government into the Council, which is chaired by the President and includes former presidents and heads of state, former chief justices, incumbent governors and the federal Attorney General. Currently, the Senate President and Speaker of the House of Representatives are only members during their term in office. The Council serves a policy advisory role and counsels the President in the appointment of the chair of the Electoral Commission, on award of national honors, prerogative of mercies and other issues around national security. While this proposed amendment has been criticized as self-serving by the legislature, it could foster equity and accord respect to all the three arms of government.
Immunity for legislators for speech in the course of duty
The constitutional grant of immunity for members of the National Assembly in respect of words spoken or written at a plenary session or committee proceeding, which is currently only guaranteed in applicable statutes, has not been well received. Despite the concerns, however, the proposal only bans the use of words spoken or written during legislative proceeding against them in a court of law, and does not protect legislators against criminal offences. It is also not unusual in other democracies to constitutionally recognize the immunity of legislators for speech in their official capacity.
Salient amendment proposals that failed
Women’s Political Participation
A proposal imposing a minimum requirement for women representation in all appointive positions (35% at the federal level and 20% at the state level) failed at the Senate and passed at the House of Representatives. Specifically, the amendment sought to guarantee the appointment of women as ministers and commissioners in the federal and state executive councils, respectively. The amendment is believed to have failed partly due to the religious, cultural and patriarchal tendencies of the senators.
Proposals to enhance women's political participation, to devolve policing and fiscal powers to the states failed.
Despite their demographic strength and historical roles of women in the country’s democratic development, the political participation of women spanning both elective and appointive positions has been on a downward trend. Since the country’s return to democracy in 1999, the national average of women’s political participation in Nigeria has remained a meagre 6.7% in elective and appointive positions. At the legislative chamber, women constitute only 5.6% and 6.5% of the membership of the Senate and House of Representatives, respectively, which is far below the global average of 22.5%, African regional average of 23.4 percent and West Africa sub-regional average of 15%. Moreover, out of the 36 ministerial appointments made by the incumbent administration, only five, representing 13.8%, are women. Nigeria is yet to elect a woman governor in any of the 36 states (Dame Virgy Etiaba only served as interim governor between November 2006 and February 2007 in Anambra State following the impeachment of her principal Peter Obi).
A related amendment to grant women the right to adopt either the state of their husband or their state of birth for consideration for appointment/election also failed to pass. This is a big challenge militating against women’s access to political office. For instance, the appointment of Mrs. Roli George to the Board of Directors of the National Population Commission was challenged by three Lagos State senators claiming that Mrs. George was not an indigene of the state.
Proposals to remove the Land Act from the Constitution and to ensure the independence of Attorneys General also failed.
Considering the low level of representation of women in elected and appointed positions, the failure of the proposed amendments was a missed opportunity. The overwhelming influence dominant male political elites bear on the system and the sustenance of this uncultured and unpopular practice calls into question the capacity of Nigeria’s democratic project to promoting equal rights and the distribution of privileges. It is important that the Eighth National Assembly revisit its decision and devise alternative approaches to ensure that women are represented in the highest echelons of power.
Devolution of power and state restructuring
Many have described the centralized nature of the Nigerian federation as a major bulwark against equal development of states and the effective exploration of resources for development purposes. Nevertheless, a proposed amendment to move certain items, such as fiscal relations and policing, from the exclusive federal legislative list to the concurrent legislative list failed. The devolving of more powers to the states was one of the contentious issues as many saw it as a way to smuggle the state formation and restructuring agenda into the constitution. In fact, one of the approved amendment proposals seeks to remove state electoral commissions from the constitution, thereby undermining state autonomy in this regard. Despite persistent agitation, a proposal for the creation of new states and the restructuring of state boundaries also failed. Similarly, during the 2014 political confab, there were failed demands for creation of additional 18 states to the 36-state structure in existence.
Land Use Act
The Land Use Act, which confers ownership of land on the federal and subnational governments, constitutes a part of the Constitution. The Act particularly empowers the governments to control and manage land, and has been seen as an impediment to development including access to housing. Nevertheless, despite widespread criticism of the status quo, a proposed amendment to remove the Act from the constitution failed. Removal from the constitution would have made needed reform less cumbersome and put the issue on the political agenda.
An apolitical Attorney General
In what could possibly have enhanced the independence of the prosecution services, one of the proposals sought to separate the office of the Attorney General at the federal and state levels from the relevant minister or commissioner, which are political appointments, and to provide a fixed tenure and a stringent process for the removal of attorneys general from office. However, this proposal failed.
The strength of democracy is predicated on decision of leaders mirroring the voice and demand of citizens. The amendment process spearheaded by the Eighth National Assembly was conducted without due consultation with Nigerians. Unlike the last review process of the Seventh Assembly, there was no public hearing or direct engagement at zonal, state and local levels to elicit citizen opinions on key amendment considerations. The process was largely shrouded in secrecy and conducted within the confines of the two legislative chambers. Civil society actors and professional groups were not granted genuine space to lend their voice, to directly engage the relevant committees and influence the agenda, and to advise on the implications of some of the decisions eventually made. The openness of a reform process is central to broadening the agenda, and to building confidence and trust, while counteracting suspicion of the underlying intent of decision makers. For instance, the contentious issue of introducing a clause on referendum to legitimatize constitutional amendment processes has been severally canvassed since the return to democracy. Nevertheless, this was not seriously considered during the latest reform process and did not form part of the proposed amendments. The issue of referendum has become all the more important particularly with the recent agitation of the Indigenous People of Biafra (IPOB) in the South East on the need to vote to determine the continuous existence of Nigeria as an entity.
The process was shrouded in secrecy and conducted within the confines of the two legislative chambers, with little space for inputs from the people and civil society organizations.
As the quest for restructuring of the states continues to rend the air in various quarters in the country, with several people calling for return to the 1963 Constitution with the attendant regionalism, or the adoption of a new constitution, the constitution amendment process may not yet be over. The clamor for restructuring and other fundamental issues has led to calls for the consideration of convening a national conference to address all the nagging issues beleaguering the polity. Such a constitutional conference should not just be an assembly of elder statesmen, but one which will directly engage the citizens and other non-state actors. In the meantime, the introduction of a provision on referendum and the organization of a referendum could provide a modicum of legitimacy to the process and partly address charges that all constitutions promulgated since 1979 have been military imposed and not people inspired.
In terms of substance, some of the proposals could limit executive discretion, enhance the autonomy of local governments and state legislative assemblies vis-à-vis state governors, and open the electoral process to the youth and independent candidates. Nevertheless, the process failed to advance crucial goals of further decentralizing the Nigerian federation and improving the abysmal representation of women in high political offices. Moreover, the amendments must still be approved by 2/3 of the state assemblies as well as be assented to by the President. Considering that some of the proposed amendments seek to weaken the autonomy of states and presidential power and discretion, the fate of some of the commendable proposals is still uncertain.
Idayat Hassan is the Director of the Abuja based Centre for Democracy and Development (CDD)