Nigeria’s Quest For New Constitution

Every organization has a
constitution or set of rules which guides its operations. No group of  people engaged in politics could exist without rules. Such an all-encompassing set of rules as constitution could be formal or informal and have to be accepted over time. The rules may be either formally laid down in statutes and other documents, or informally understood.
Nigeria has operated several constitutions from 1914 till date and all the past constitutions underwent amendments to pave way for new initiatives.
There is a great need to amend or review Nigeria’s 1999 constitution in line with present realities. It is no longer relevant and viable considering its inconsistency, so it is high time Nigeria had a new constitution that would promote equality and selflessness. We need a broad-based constitution that will be acceptable to majority of the citizenry and based on justice, and fair play.
The Senate Committee on the Independent National Electoral Commission (INEC) recently received a proposal from INEC after a retreat with the electoral body where the implication of the request was exhaustively discussed. The proposal sought:
(i) To amend section 3B of clause 2 of the Fourth Alteration Bill (Alteration of Section A of the constitution) dealing with how a new constitution can be processed. The aim of the insertion was to make provision for the President in addition to the National Assembly to initiate the process of a new constitution.
(ii) Alterations of Sections 68 and 109 to mandate the clerk of the National Assembly to notify the Independent National Electoral Commission in    writing within 7 days of the existence of a vacancy arising from death, resignation or vacation of seat of a member of the National Assembly or a member of State House of Assembly respectively (Clauses 2 and 3).
(iii) Alteration of sections 134 and 179 which aims to extends the time for conducting Presidential and Governorship re-run elections from 7 days to 21 days as contained in clasue 4 and 5.
(iv)The empowerment of INEC to de-register political parties which fail to win Presidential, Governorship, Chairman of a Local Government/Area councillor or State Assembly election provided for in alteration of section 225, in clause 6.
(v)The conferment of exclusive jurisdiction on the Federal High Court for trail of offences arising from, pertaining to or connected with violation of the provisions of the Electoral Act and any other election related Act of the National Assembly is made in alteration of section 251, captured in clause 7.
(vi)The third schedule is altered in clause 8 to include former Senate Presidents and Speakers of House of Representatives in the membership of the Council of State.
In their contributions to the proposals, many senators kicked against the idea of empowering the President to participate in the process of initiating a new constitution, maintaining that such power is an exclusive preserve of the legislature. Some argued that a new constitution was unnecessary because it would propel further crisis in the polity which would jeopardize democracy. Others also cautioned against the alteration of the constitution, especially at this stage of the country’s democracy.
Senator Kabiru Marafa explained that inserting a clause to accommodate the president as one of the parties that could initiate the process for a new constitution was an attempt to empower the Executive to usurp the powers of the legislature.
Senator Bello Tukur enjoined the senate to limit its activities to the amendments of certain clauses identified by stakeholders instead of injecting new ones, while Senator Ahmed Lawan, however, argued that the process of a new constitution was currently the exclusive preserve of the National Assembly and must never be surrendered to the Executive.
Senator James Manager, however, disagreed with those who opposed the amendment, saying that there was nothing wrong with the proposal. He encouraged the senate to go ahead and pass it, adding that an officer of the ranking of the president can also initiate the process of a new constitution by writing to the National Assembly, presenting it as if it is an executive bill. Senate Leader, Victor Ndoma-Egba in his contribution said; “There is already provision for three classes of bills namely members bills, executive bills and private member bills,” arguing that the amendment being sought was in agreement with provision of the senate rules.
The Civil Liberties Organisation (CLO), in its reaction, told newsmen in Abuja that the Senate’s move to give INEC the power to de-register parties in the new constitution amendment negated democracy. Its Executive Director, Mr Steve Aluko who stated this noted that the power to de-register parties should be with the electorate and advised that wisdom dictated the need to deepen the practice of democracy and not to legislate against its continuity.
The need to amend or review the 1999 constitution of the Federal Republic of Nigeria is mot contestable because a constitution must come reasonably close to reflecting the people’s expectations, and must also be open to revision, in response to changing needs. The new constitution should, however, not break drastically with long-standing traditions of government and should be relatively easy to change, have incentive compatibility, and be built or written and released as much as possible so that the power holders will find it advantageous to do what society as a whole needs from them.
If a set of rules is to work, it must not be too far out of line with what most people in the country wish. It is not enough to set up rules that the people will obey reluctantly; something more is needed than bare acquiescence. A good constitution will not only be one that people are willing  to obey, but also one that comes close enough to their preconceptions, that they will be able to identify enthusiastically with the system. This is not to say that a constitution can never deviate from what the people expected because revolutionary countries such as China, for example, have imposed new systems of government, which transformed their people’s expectations. But they meticulously and religiously followed the rules. Although to adapt a constitution may not be the best or the most democratic way to transform a country and its people, but it at least provides a leeway to change a country. The authors of the 1999 Constitution of Nigeria were not wise enough to build in the essential ingredients the citizens needed.
This is why it is important to allow the recommendations of the on-going National Conference to form the plank of a new constitution for the nation.
Human rights lawyer, activist and delegate at the national confab, Mr Femi Falana in Abuja, recently made a case for the inclusion of the recommendations of the conference in the constitution under review, expressing the hope that the recommendations that would emerge would be accepted by the National Assembly and co-opted into the emerging constitution.
Falana also expressed the belief that the conference would not be an exercise in futility as it is timely and coming at a time  that the National Assembly was undertaking a review of the 1999 constitution and expected that the confab reports would be considered in the course of amending the constitution.
In any political system like Nigeria, it is important that people in positions of power have personal incentives to do what society as a whole needs from them. That is, holders of power should find out what the people want them to do and the on-going national conference is the most appropriate forum for it. Those rejecting the inclusion of the confab recommendations or reports into the new constitution do not mean well for the nation.  The President and National Assembly members are expected to make laws for the country; public health officials are expected to watch out for outbreak of epidemics, judges to settle legal disputes fairly, police officers to maintain law and order, members of town councils and traditional rulers to maintain communal peace within their domain. If costs and benefits are not set up to encourage officials to act in the intended manner, there is every tendency that they will act in ways that suit their personal interests rather than those of society.
A question that is begging for an answer is: given that Nigeria had been operating a constitutional system since independence, how faithful is the country to its constitutions? Constitutionalism is the doctrine that states that a country should be faithful to its constitution because the rules so provided are all that can protect the citizens from arbitrary decisions by those in power. The new constitution should be designed fairly, rather than to give undue advantage to one particular group.
The senate had initiated a fresh amendment to the 1999 constitution to empower the president to propose an entirely new statute in place of the existing one, just as delegates at the on-going National Conference had canvassed for a new constitution that would reflect the wishes and aspirations of Nigerians.
Wherever powers fragmented such as in Nigeria, whether in a presidential system, which divides power between different parts of a national government or a federal one, which divides power between a central government and regional governments, there is the need for some institutions that can operate as referees to settle disputes among the various holders of power.
Constitutional review is found in almost all systems that fragment power like Nigeria. Constitutional review has had some popularity since World War II as a means of protecting individuals from the arbitrary use of state power, and came to be seen as a tool of “Constitutionalism,” in which a relatively non-political court can help to place limits on the authority of the government. This helps to explain the popularity of constitutional review in Germany after the Nazi dictatorship, although the federal system there probably would have required it in a case. More to that, it also helps to explain the institution of constitutional review in Ireland and Italy, which have neither federal systems nor presidential governments.
If Nigeria’s politics or democracy is primarily as question or process of working out proper governance for the country, there must be an appropriate set of rules as constitution that could address the numerous problems that are bothering Nigerians today, which include among others; poverty and hunger, unemployment, power an good water supply, poor road network, poor education, housing.

Shedie Okpara