Nigeria’s constitutional review: the continuing quest for a legitimate Grundnorm
Nigeria’s National Assembly has once again embarked on a series of public hearings regarding potential amendments to the 1999 Constitution. Several key issues continue to be debated, including federal restructuring, local government autonomy, state police, and national security. The substance of potential reforms is, of course, crucial, but given public sentiment that the 1999 Constitution was thrust upon Nigeria by the outgoing military regime, genuine and extensive public engagement is also key to ensuring the legitimacy of this process and acceptance of any resulting proposals for constitutional reform - writes Idayat Hassan.
In May and June 2021, committees from both chambers of Nigeria’s National Assembly – the Senate and the House of Representatives – spent a substantial part of their time crisscrossing the country for public hearings on issues relating to the 1999 Constitution. Sitting in centres across the country’s six geo-political zones, federal legislators held sessions to collate the views, ideas and opinions of a broad spectrum of Nigerians on 16 key issues including devolution of powers, the administration of government, resource control, judicial reform, and national security.
As previously analysed on ConstitutionNet, this is not the first substantial effort directed towards altering key aspects of the 1999 Constitution. The first, second and third amendments to the Constitution were debated and signed into law during the tenure of the sixth National Assembly (2007-2011). The seventh National Assembly (2011-2015) conducted a long-winding review process. Despite significant expenditure, the process ultimately failed after the amendments, which were submitted as a single bill, were vetoed by President Goodluck Jonathan.
The groundswell of critical voices and stakeholders continues clamoring for a people-driven constitution.
Taking a cue from its predecessors and wary of a potential presidential veto, the eighth National Assembly (2015-2019) adopted a piecemeal approach to the review process by setting up two separate committees, one for the House of Representatives and another for the Senate, with the hope that multiple bills proposing different amendments would have more chance of being passed into law than a single bill. But not all of the amendments could be pushed through before the National Assembly’s tenure lapsed. With the efforts so far failing, the groundswell of critical voices and stakeholders continues clamoring for a people-driven constitution to remedy the lack of public representation in the procedure and substance of the military-led process of making the 1999 Constitution.
Ostensibly to address mounting civil society pressure, in February 2020, President of the Senate, Ahmad Lawan, formed a Committee on Constitutional Review to begin the process of a fifth revision to the Constitution. This 56-member Committee reviewed outcomes from previous public consultations and national conferences (especially the 2014 National Conference), held further consultations and received submissions before deciding on the key issues and process for further public hearings.
Many of Nigeria’s ethnic nationalities and interest groups believe that the content and character of the 1999 Constitution has been stifling their growth and development. As a result, the current Constitution has been openly rejected by socio-cultural groups, especially those representing various ethnic groups, civil society, and professional groups within the Nigerian polity. Importantly, too, anger remains in the polity over the historic lie told in the preamble of the 1999 Constitution that “we the people” of Nigeria came together to deliberate upon and collectively approve the nation’s constitution, when such debates and genuine public input did not occur at anything like a national level.
With many Nigerians continuing to clamor for a fresh, people-driven template to drive democracy and good governance, even the public engagement efforts of the current review process are unlikely to be far-reaching enough to gain sufficient popular legitimacy and backing for proposed constitutional changes.
Key areas identified for the 2021 constitutional review
Nigerians have complained of structural infirmities occasioned by the state’s arrangement. In response, successive governments have introduced mechanisms to address these challenges, including the creation of states, resource control, and several constitutional review processes. However, since the return to democracy in 1999, the call for federal restructuring has gained prominence due to sentiments of marginalisation, inequality and exclusion.
Several ethnic nationalities in southern states and across the Middle Belt have been strident in calling for the restructuring of Nigeria to increase regional autonomy. Groups, including umbrella socio-cultural bodies like the Afenifere (Yoruba), Ohaneze Ndigbo (Igbo) and the Middle Belt Forum, have consistently argued that the concentration of power in the centre is suffocating subnational entities in the polity. At the heart of demands for restructuring is resource control, which the groups have advocated, if more decentralised, would make Nigeria more productive, economically buoyant and less dependent on oil. Despite these agitations, the National Assembly does not appear to be very keen on the restructuring of the country, and the conversation has assumed more of the historical North (Hausa)-South (Yoruba/Igbo) divide. But, in July 2021, the South-West Governors (predominantly Yoruba groups) submitted a unified position to the ongoing constitution review process, proposing the conversion of the current six geopolitical zones into federating units (hence consolidating the current 35 states). Nevertheless, the challenge of big states, including the memory of the Biafra war, continue to generate resistance for reform.
Local government autonomy
As in previous constitutional reform processes, the quest for local government autonomy has again cropped up as one of the issues for amendment. There are calls that the guarantee of a democratic local government provided for in Section 7(1) of the 1999 Constitution as amended should be reinforced by specific provisions that would preclude the mass dissolution of local government areas (LGAs), remove the power of state governors to replace elected representatives at the LGA level, and remedy the failure by successive governors to conduct local government election. Instead of elected officials, Caretaker Committees made up of loyal party stalwarts are appointed by the governors.
During the public hearings, many presenters placed an emphasis on the need to ensure the LGAs become more democratic. Nigeria cannot claim to be practicing democracy without representative government at the local level. To do this, LGAs must be untied from the apron strings of state governments. The revenue sharing formula for statutory allocation from the federation account stipulates that the federal government takes about 52 percent, 27 percent for the states, and the local governments receive 21 per cent. However, section 162 of the Constitution provides for a State Joint Local Government Account (SJLGA). In practice, the state governors appropriate the entire 48 percent and disburse as they deem fit to the local governments. The lack of democracy at the local government level has led to an abysmal delivery of public goods and services at that level. There are also calls in some quarters for the SJLGA to be abolished, to allow local governments to directly access their funds as a front-line charge from the national consolidated account.
How revenue is allocated across the three tiers of the government remains a bone of contention. Although there were no clearly stated proposals on what percentage of allocated revenue should go to which tier of government, the consensus was that the federal government currently takes too much to the detriment of state and local governments. Under the current revenue sharing formula, the federal government takes 52.68%, the states take 26.72%, and 20.60% is received by the local governments. The eight oil producing states in addition receive 13% share from revenue from oil extracted in the relevant state.
While canvassing their views on areas to be reviewed in the Constitution, many interest groups called for the Nigerian constitution to expressly recognise the need for states to have their own police forces. The view is that the federal police has not been able to respond robustly to the security challenges facing Nigeria because it is removed from the local communities. Given the level of insecurity pervading the country, with persistent conflicts between herders and farmers and bandits running amok in parts of the country, this is hard to dispute. In fact, in some parts of the country, regional security structures such as the Amotekun in the South-West, Ebube Agu in the South-East, and the Civilian Joint Task Force in the North-East are already, informally at least, in place and operational.
Removal of immunity clause
Section 308 of the Constitution grants immunity against civil or criminal proceedings for public office holders such as the President, the Governors, and their deputies, while in office. Nigerians have rallied against this provision on the ground that it has been grossly abused and should be removed to allow for swift dispensation of justice.
Strengthening independence of Institutions
There are proposals to alter Section 121 of the Constitution that would grant financial independence and more oversight powers to the office of Accountant General of the Federation and Auditor General of the Federation, which is believed would strengthen accountability.
Citizenship and indigeneity
The current constitutional provisions privilege indigeneship at the expense of citizenship. The result is that residents who have inhabited an area for centuries cannot lay claim to rights and entitlements simply because s/he does not share a common ancestry with those considered original natives, or indigenes. This has led to exclusion of and discrimination against certain citizens politically, economically and socially in parts of the country they deem to be their home. There are therefore calls to reform the constitutional benefits attributed based on indigenship.
Another issue raised at the hearings is unequal transmission of citizenship via marriage. The Constitution allows citizenship by registration for a woman married to a Nigerian man but precludes a Nigerian woman married to a foreign man to confer citizenship on him. This provision remains unaltered despite advocacy. A foreign man married to a Nigerian woman may pursue the option of citizenship by naturalisation based on fifteen years’ residence in the country.
Constitutional roles for Traditional Rulers
The 1999 Constitution makes no provisions for traditional rulers. With the spate of insecurity in the country, there is a push for traditional authority to be returned to the constitution as in the 1960, 1963 and 1979 constitutions, as traditional rulers are the closest to the citizens and can play an important role in security matters in their communities.
Nigeria has conducted six general elections since the return to civil rule in 1999. Each successive election has had areas of commendation and areas for improvement. However, there are critical areas for reform to enhance the quality of elections in Nigeria. Other important areas up for review include the determination of pre-election matters, which are currently handled in regular courts as opposed to election petition tribunals. Some of the items up for amendments include expansion of the time for elections to the National Assembly, State Houses of Assembly, the office of President, and office of Governor, and amendment of the time for the determination of pre-election matters so as to provide sufficient time for the conduct of party primaries and final determination of pre-election matters by the courts prior to the election day.
Public participation: genuine engagement or lip service?
Given public sentiment that the 1999 Constitution was thrust upon Nigeria by the outgoing military regime, genuine and extensive public engagement is key to ensuring legitimacy of this process and acceptance of any resulting proposals for constitutional reform. However, at the public hearings held by the Senate Committee in May 2021, people who were given the opportunity to make presentations were only allocated three minutes. Furthermore, citizens have complained that invitations to the public hearings were issued with insufficient time for preparation or to effectively canvass the key issues that communities wanted to raise. In terms of participation, there have not been attempts to strategically communicate the review process in local languages. Gender considerations have largely been ignored with the drivers of the process being mostly men. Persons with disabilities have also been excluded, with no sign language interpreters present at the engagement sessions. These are just some of the observable gaps, which point to the lack of depth in terms of citizens’ participation and inclusion.
There have not been attempts to strategically communicate the review process in local languages and gender considerations have largely been ignored...
Worse still, people have drawn attention to what was termed ‘undemocratic antics,’ wherein some members of the Committee in public hearing centres gave the impression that they had already made up their minds about the areas they are inclined to amend prior to citizens providing their input. In fact, there is little to indicate that the outcomes of the review process will radically alter the current drift in the polity. The entire review process, like the efforts before it, has mainly come across as a talk shop for the political elite, with a thin veneer of public participation. Across the country, the popular sentiment is that the process lacks the rigor to birth a document which will address demands for true federalism and devolution of powers from the current bloated and outsized federal centre.
While several interest groups used the review process to express their views on what the direction of the country should be, many others simply condemned the exercise as a sheer waste of time. Considering the ingrained flaws, and the largely incurable defects in the current basic law, they argue that Nigeria’s best option is to adhere to the admonitions of well-meaning statesmen and women who have called for an urgent national dialogue to douse tensions and chart a road map for the unity, stability and orderly governance of the country. To derive the legitimacy of the people at the grassroots, the proceedings and agreed points from such a dialogue should be presented clause by clause for the Nigerian people to vote on in a referendum. That way, the constitution derived from such a process would be widely accepted and would bear the true stamp of “we the people.”
Conclusion: a fragile time to amend the constitution
The ongoing discussions about constitutional amendment are happening at a point in time where there are strident calls for secession in the southern parts of Nigeria. The Indigenous People of Biafra (IPOB) are agitating for a separate state of Biafra more fiercely than anytime after the Biafra war. IPOB has also established a security arm, christened the Eastern Security Network (ESN). The ESN is accused of killings and destruction of federal government infrastructures in South-East Nigeria. In the South-West, Sunday Igboho has championed the rights of Yoruba people who claim to be under attack from northern Fulani herdsmen. Recent efforts by the Department of Security Services to arrest Sunday Igboho failed, but several of his followers were killed and his property damaged. This move by the federal government has only further heightened the call for secession in south-west Nigeria, in addition to historical secessionist tendencies among the Igbo in the South-East.
Currently Nigerians do not have faith in the ongoing amendment process, many has called it an exercise in futility, waste of time and resources.
With ethnic nationalities calling for the determination of the Nigerian state either through demands on power sharing, revenue sharing and even secession, it remains quite a delicate time to attempt to amend the constitution. Although this is an opportunity to address previous imbalances, the current approach of Nigerian legislators suggests that the process is unlikely to address such thorny issues, and the cycle of significant investment in public review, with disappointing results, will continue. The processes have not yielded the much desired amendments that could cure the aversion of young and old, male and female to the current 1999 constitution as amended. Possible amendments that may sail through the National Assembly include electoral reforms concerning the Independent National Electoral Commission, state police, and revenue allocation, but these may still be vetoed by the President. Currently Nigerians do not have faith in the ongoing amendment process, many has called it an exercise in futility, waste of time and resources.
Will the Nigerian constitution ever reflect the true letters and meanings of her preamble? The ongoing process to promulgate the Electoral Bill, 2021 is the most recent example that evokes doubt. The Bill allows for electronic voting but prohibits the electronic transmission of election results. Nigerians conducted last-minute lobbying to ensure the electronic transmission of results against the old archaic and chaotic manual collation of election results. The Senate and House of Representatives passed the Bill without the amendment and proceeded on a two-month recess. Hopefully, one day, Nigeria legislators may amend the constitution to reflect the yearnings of her citizens, whom they purportedly represent. Until that day, the preamble to the Constitution “We the people of the Federal Republic of Nigeria” may remain an illusion.
Idayat Hassan is the Director of the Abuja-based Centre for Democracy and Development (CDD)
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