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Is fifth constitution amendment doomed? 

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Is fifth constitution amendment doomed? 

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As election fever grips the political class, the move to reinvent the grund norm appears stalled again. YEJIDE GBENGA-OGUNDARE considers the problems and prospects of getting the much-desired assignment done. 

Over the years, the need to review and amend the 1999 constitution has been a consistent national discourse. The assignment is widely seen as a deliberate way of addressing Nigeria’s foundational problems, amidst the massive clamour for a people-driven constitution and a deafening dissension against the 1999 constitution, seen as legislation thrust upon Nigeria by the military adventurers-in-power. The military creation has been widely panned as being ineffective in the current socio-political and economic dispensation.

Across ethnic nationalities and interest groups, there is a belief that the content and character of the 1999 Constitution is responsible for the perceived stunted growth and development of naturally-progressive ethnic units, due to the perceived lopsidedness in the management of the country’s resources. Ethnic nationalities, especially in the southern and the Middle Belt parts of the country, have led the call for the restructuring of the country, for enhanced regional autonomy, as the way out of the quagmire the nation has found itself.

Socio-cultural bodies; Afenifere (Yoruba), Ohaneze Ndigbo (Igbo) and the Middle Belt Forum, have consistently argued that the concentration of power in the centre is suffocating sub-national units in the country and have been at the forefront of the demand to drop the 1999 constitution and commence holistic restructuring especially in the area of resource control, based on the argument that embarking on decentralisation will quickly solve the nation’s problems and make it more effective, buoyant and  economically-productive.

The socio-cultural groups rejected the 1999 constitution in its entirety, branding it a faulty document, which allegedly lied when it said “we the people” of Nigeria came together to deliberate upon and collectively approve the nation’s constitution.” They further argued that requisite national debates and genuine public input, needed for the 1999 Constitution to be truly pro-people, did not take place, before the law book was put together by the military, to usher in democracy in 1999.

 

Another failed venture?

After what seemed a national outcry, in May and June 2021, joint committees of both chambers of the National Assembly, began a process that saw them moving across the country’s six geo-political zones, to hold public hearing on issues relating to the 1999 Constitution, as a way of engendering mass participation, in the making of a revised Constitution for the country.

The attempt is however not the first by the federal legislature. Before the latest effort, there had been moves to alter specific aspects of the 1999 Constitution in the past; there were debates on the first, second and third amendments to the Constitution which were signed into law during the tenure of the sixth National Assembly that ran between 2007 and 2011 and the National Assembly that ran from 2011 to 2015. They put in place, review processes that gulped huge monetary resources but which didn’t yield the desired results as they were vetoed by President Goodluck Jonathan after submission as a single bill.

The eighth assembly of 2015 to 2019, learning from its predecessors’ failed effort, embarked on a piecemeal review process by setting up separate committees for the two chambers, with the belief that multiple bills on different amendments had a better chance of survival. However, all of the amendments couldn’t be pushed through before the tenure expired. When the agitation would not fizzle, the current Senate President Ahmed Lawan bowed to pressure in February 2020, and created a 56-member Committee on Constitutional Review to begin the process of the fifth revision, to decide  key issues and process for further public hearings.

And to ensure adequate representation, the South-West Governors in July 2021, submitted a unified proposition, seeking the conversion of the current six geopolitical zones into federating units; hence consolidating the current 36 states, even as the memory of the Biafra war, continued to generate resistance to reform.

In carrying out its assignment, the 56-member Committee identified key areas for review, to include; federal restructuring, local government autonomy, revenue allocation, state police, the removal of immunity clause, electoral reform, citizenship and indigeneship, constitutional roles for traditional rulers and independence of institutions.

However, ethnic nationalities have continued to express their lack of hope in the amendment process, On May 27, 2021, the pan Yoruba socio-political association, Afenifere, stated that the move to review the constitution by the Senate would not solve the myriad of challenges confronting Nigeria, returning a damning verdict that the exercise was in futility. Afenifere reiterated its belief in the restructuring of the country and true federalism, emphasising that the National Assembly must also be discussed in the process of restructuring.

“We cannot claim to be in a democracy and be governed by a constitution that does not emanate by the people. Amendment will not cure the anomalies. You cannot put something on nothing and expect it to stand” it reasoned.

Also, on May 30, 2021, the PAN Niger Delta Forum (PANDEF), warned the presidency and National Assembly that any amendment of the constitution to create an impression that Federal Government heeded the demand for restructuring, would not stop the agitations, in its submissions to the Senate Committee on the review of the 1999 Constitution at the South-South public hearing in Asaba and Port Harcourt.

PANDEF claimed that there are also insinuations that the process was merely an attempt to distract citizens and douse the momentum the clamour for restructuring had garnered, adding that “nobody should be under any illusion that two or three peripheral amendments in the Constitution would address the growing disaffection and demands for the restructuring of the country. It is also instructive to note that the cost and consequences of ignoring the agitations for fundamental changes to the constitution and structure of the country could be dire.”

It further said, “Let us emphasise that the position of PANDEF remains that Nigeria needs to be restructured, a complete alteration of the military-imposed 1999 constitution and structure of the country. While we agree to a united, indivisible Nigeria, it must, however, be based on equity, fairness and justice. The present structure of Nigeria has become grossly defective and inappropriate for a heterogeneous society like ours. Restructuring has, therefore, become not only imperative but a necessity.”

 

Primed to doom? 

Many stakeholders have argued that the alleged inadequate public participation may be a major clog in the wheel of progress of the exercise. There has been skepticism from many quarters on its success not only because of the lack of belief from ethnic nationalities but also because there was perceivable low public participation.

An activist, Barrister Olaogun Mabel stated that the likelihood of the result of the process being acceptable is low, saying “how many people even know about the ongoing process or being able to contribute? As an activist that had been following this, I didn’t even know when it held at my region because there wasn’t adequate information and publicity. The 1999 Constitution is ineffective because there was no genuine or widespread public engagement to know the mind of the public and give it the legitimacy needed.  And though I wasn’t there physically, I heard complaints that those at the public hearings held by the Senate Committee in May 2021, didn’t even have chance to express themselves. They just invited those they wanted. How can this be legitimate without adequate public engagement?”

Oluyibi Abegunde on his part told The Jury, “I actually went to the Asaba public hearing with a civil society organisation managed by a friend. I am a volunteer with the body so I was drafted as one of the representatives. Unfortunately, I left before they concluded because it looked like a jamboree and not a platform to hear what we had to say. The feeling I had was they are just paying lip service because they didn’t really act like they were interested in what we had to say. It was like they already made up their mind. They are just going through the motion; that is how I feel.”

Blessing Omoruyi on her part said she isn’t interested at all, saying, “what are they doing? Is it the first time? These are scams because I am sure many Nigerians do not even believe their antics aimed at pacifying us so they can continue their enjoyment. This will definitely end as an exercise in futility and a sheer waste of time and resources.

In a write-up, Idayat Hassan who is the Director of the Abuja-based Centre for Democracy and Development (CDD), said the timing of the amendment process was dicey, adding “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,” she said.

 

What lawyers are saying

Many constitutional lawyers have over time expressed reservations about the process leading to the making of the 1999 Constitution because of its lack of acceptance by the people and its process of emergence. Foremost constitutional lawyer, Chief Rotimi Williams (SAN), described the 1999 Constitution as a “document that tells lie against itself.”

Professor Itse Sagay (SAN) described the Constitution as a “fraud,” while another foremost Professor of Law, Ben Nwabueze (SAN), described the Constitution as “illogicality,” arguing that “one single Constitution for all the governments involved both Federal and State in a Federation, is a manifest contradiction.”

Also, at a seminar on the operational Constitution organised by the Nigerian Bar Association, Ikeja Branch, on the 18th of June, 1999, the Bar argued that since the enactment of the 1999 Constitution, the questions that has been consistently asked are;where and when did that resolution take place? How did the people of the Federal Republic of Nigeria arrive at that firm and solid resolution purportedly expressed in the recital to the 1999 Constitution?”

Professor Julius Ihombere, talking about the value of participatory/people-driven Constitution, says “political elites and leaders have not come to fully appreciate the importance of a participatory or people driven Constitution-making approach to their own survival in office and to the reduction of conflicts and pressures on the State, its institutions and custodians. Aside from using the process to resolve burning national issues, a participatory approach is probably one of the best panaceas to instability, public cynicisms and alienation from government. It is equally the best way to cultivate a culture and tradition of reliance on dialogue and consensus, rather than the resort to violence.”

Two prominent Silk, Deacon Dele Adesina and Sebastine Hon in the wake of the latest legislative effort, did an analysis on how Nigerians could give themselves a new and workable Constitution. Adesina said Nigeria has successfully carried out four amendments through the first, second, third and fourth alteration exercises, leading to several sections of the Constitution being altered, within a period of 21 years of the existence and operation of the constitution.

According to him, “the question is, if we find it desirable to embark on another exercise as profound and expansive as the one being contemplated here, whether it is not far better and more desirable to think about a holistic replacement of the 1999 Constitution? Everyone in this nation today, accepts the fact that the nation is faced with a lot of structural and systemic challenges, a good number of which are the products of the inadequacies of the 1999 Constitution. It is no longer news that there has been over-concentration of powers at the centre, to the detriment of the federating units. Indeed, over the years, the centre has been grabbing and grabbing powers at the expense of the federating units.”

He concluded that “rather than just seeing the Constitution as a power map focusing exclusively on the question of power which is what we may achieve by the various amendments, we must see the Constitution as an instrument for addressing pressing socio-economic, cultural and economic questions, as well as an embodiment of consensus around constitutionalism. It must be seen an expression of the general will of the nation, a reflection of its history, fears, concerns, aspirations, vision and indeed, the soul of the nation.”

On his part, Hon, while talking about ‘Agenda for Constitutional Amendment in Nigeria’ stated that “since the Constitution of the Federal Republic of Nigeria, 1999, came into force on 29th May, 1999, it has been amended four times. While acknowledging the voices against further amendment thereof, I am totally in support of its amendment; and I have my reasons; Nigeria as a country is far from attaining the national and international height, deserving of a country with such huge and seemingly unquantifiable potential and potentialities. We must keep striving for the best, until we reach there.”

On amendments to decentralise powers, he said, “if presidentialism is to be retained, my experience of political engineering in Nigeria, is that persons in power vehemently oppose suggestions to the effect that powers centralised in them or the offices they are occupying, should be pruned down. Such people only realise the critical importance of such exercises, only when they leave office and other power holders assume leadership! What a tragedy of political self-immolation! The net is that, Nigeria as a country is worst for it; yet, the trend seems to be unabating. Hoping that out present leaders will act differently.”

“Finally, I suggest that Part 2, Chapter 1, Section 70 of the Algerian Constitution, be included in our Constitution. It states that “The President of the Republic, Head of the State, embodies the unity of the nation,” who “is the guarantor of the Constitution”. Similar provisions can be found in Article 49 of the Constitution of Armenia 1995. This will go a long way in dousing claims of ‘ownership’ of any Nigerian President, by ethnic and religious jingoists,” he added.

Making definite recommendations he said; “I suggest a reversal to the provisions of Section 145(1) and (2) of the aborted 1989 Constitution of Nigeria, where the President was placed under constitutional duty to assign executive duties to the Vice-President and the Ministers. Without this provision, Nigerian Presidents are always in the habit of sidelining their Deputies, or only accommodating them if they accept to do unimaginable things for them. Another provision I would like to be accommodated is Article II, Section 3 of the US Constitution, which mandatorily requires the US President to “from time to time give to the Congress information on the State of the Union.” This sounds symbolic; but it helps to keep the President in check.

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