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An autochonous constitution for Nigeria: Myth or reality? (1)
Being excepts of the inaugural lecture delivered by Prof. Taiwo Osipitan (SAN), of the Department of Public Law, University of Lagos recently
THE Constitution is the organic law of a Nation in which basic rights and corresponding obligations of students and non-students, lawyers and non-lawyers, the rich and the poor, the old and the young, the strong and the defenceless are contained. We all need the Constitution.
In 1914, the Northern and Southern Protectorates were merged into one, to form the Colony and Protectorate of Nigeria. Since 1914, apart from the still birthed 1989 and 1995 Constitutions, Nigeria has operated eight different Constitutions. These are the Imperial, Independence, Republican and Presidential Constitutions. Regrettably, Nigeria has unsuccessfully operated Constitutions, which have worked perfectly well in other jurisdictions. Nigeria has also experienced military dictatorship with this having serious implications for the workings of her many Constitutions.
Out of her 44 years of independence, different military administrations ruled Nigeria for approximately 30 years. After more than 15 years of military dictatorship, democracy was restored in Nigeria on May 29 1999 and the 1999 Constitution became operative.
The 1999 Constitution, which like the 1979 Constitution, was processed and decreed into existence by the departed Military administration, has attracted mixed reactions. Some Nigerians see the 1999 Constitution as the product of a few educated and urban elite supported by the military hierarchy. Apart from the obvious criticism of being a legacy of the departed military administration of General Abdulsalami Abubakar, the autochthony of 1999 Constitution has been questioned. It has been labelled as a fraudulent document because its preamble gives a false impression that it was authored by "We The People" of Nigeria.
According to Chief F.R.A. Williams (SAN), the 1999 Constitution is a false instrument "because although it was in truth and in fact enacted or imposed upon the country by the military authorities the Constitution in question falsely declared that it was made by "We the people of the Federal Republic of Nigeria."
The criticism of the 1999 Constitution resulted in the setting up of two Review Committees by the President of the Federal Republic of Nigeria and the National Assembly. These Committees were mandated to highlight all areas of defects in the Constitution in the hope that identified defects will form the basis of its review.
A silver thread, which runs through Nigeria's 90 years of Constitution making, is the perpetual search for a Constitution that will satisfy the aspiration of political elite, ensure peace, order and good government and promote the unity and welfare of Nigerians.
The persistent demand for either a full-blown Sovereign National Conference (SNC) or a simple Constitutional Conference where issues affecting Nigeria and Nigerians would be discussed is a manifestation of dissatisfaction with the Constitution.
The structure of the federation, review of revenue allocation formula, control of resources and the principles of derivation, establishment of state police, devolution of political powers, the restoration of true federalism and a restructuring of the foundations of Nigeria through negotiations, are the evident justifications for convoking either a Sovereign or a simple Constitution Conference.
If we may ask, is a full-blown SNC the solution to Nigeria's numerous socio-political problems? Can we convoke an SNC, which will consist of the genuine representatives of the people? How do we ensure that the will of the people is not subverted through electoral malpractice? Will election of members of the Conference ensure that persons knowledgeable in constitutional matters are elected to represent the people at the conference?
How best can we, in the light of our socio-political experiences, produce an autochthonous Constitution for Nigeria? Are Nigeria's socio-economic problems limited to the Constitution or attributable to the operators of the Constitution? Are we not losing focus in the task of Nation building, in the endless clamour that the 1999 Constitution be supplanted by a people led and people-processed constitutions? Is it not possible to achieve autochthony of the Constitution by amending the 1999 Constitution?
What is Constitution?
If there is any point, which has resulted in a consensus ad idem among lawyers, it is the fact that words lack universally acceptable meaning. Law, itself, is an embodiment of controversies. The teaching of jurisprudence begins on the hypothesis that words have no exact meaning as they are generally determined by the speaker's abstractions. Consequently, the word 'Constitution' means different things to different people. Judge Cooley testified that "it is easier to tell what a Constitution is not more than what it is."
In Webster' New Twentieth Century Dictionary, a Constitution is defined as:
(a) 'the way which a government, state, society etc is organised.' (b) 'the System of fundamental laws and principles of a government, state, society, corporation etc written or unwritten.'
(c) 'a document or set of documents in which these laws and principles are written down.'
Black's Law Dictionary, defines a Constitution as "the organic and fundamental law of a Nation or State which may be written or unwritten establishing the character and conception of its government, laying the basic principles to which its internal life is conformed, organising the government and regulating, distributing and limiting the functions of its different departments, prescribing the extent and manner of exercise of sovereign powers, a charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people of the union and officers of the government in respect of all the points covered by it and in opposition to which any act or ordinance of such department or officer is null and void."
To Prof. Ben Nwabueze, a Constitution refers simply to "the frame or composition of a government the way in which a government is actually structured in terms of its organs, the distribution of powers within it, the relations of the organs inter-se and the procedure for exercising power."
A constitution has also been defined as "rules which set out the framework of government, postulates how is ought to operate and makes declaration about the purposes of the states and the society and the rights and duties of citizens but no real sanction is provided against violation of particular provisions of the Constitution."
Hogg, however, draws a distinction between the narrow and wide meanings of a Constitution. According to Hogg, in the narrower sense, the Constitution "refers to those rules embodied in a basic constitutional document such as in the United States of America, India or Nigeria. In the wider sense, it includes all- important rules, which establish, empower and regulate principles of government, some rules not contained in the basic document and some non-justiciable rules such as is the case in the United Kingdom."
The Autochthony question - "we the people"
The Preambles of the 1979 and 1999 Constitutions identically contain the above famous words "We the People" but with the addition of "by our representatives." As noted earlier, the autochthony of the 1999 Constitution has been questioned against the backdrop of the insertion of these words in a Constitution which was processed and enacted into existence by the departed military rulers, who were not the people's elected representatives.
The question, which must be addressed is whether the autochthony of the Constitution is rooted within or outside the preamble. Assuming the preamble contains a false statement, we yet ask, does the falsity of the statement destroy the Constitution's autochthony? Can a Constitution that is devoid of these three words be autochonous? What exactly is the place of a preamble in a Constitution?
The three words 'We the People' first found written expression in the preamble to the American Constitution of 1787. Some countries have subsequently embraced these words as the badge of democracy and inserted them in their constitutions.
In jurisdictions with unwritten constitutions, no importance is attached to these words. Great Britain, Israel and New Zealand operate unwritten Constitutions in the sense that there is no single constitutional document in each of these jurisdictions. A Preamble which contains the famous words "we the people" has never been part of the Constitutions of the countries and the autochthony of these constitutions have not been questioned. Therefore, the autochthony of a Constitution does not depend on the inclusion in or the exclusion of these words from the Constitution.
A Preamble is neither an integral nor an operative part of the Constitution and consequently not the source of its autochthony. A Preamble in a Constitution merely illuminates the objects of the framers of the Constitution.
"The Preamble to the Constitution of the United States," observed Antieu, Illuminates the objects of the framers and thus can be a guide, but it is not construed to confer rights or powers. The preamble explains that the objects of the framers were to form a more perfect union, to establish justice; to insure domestic tranquillity, to provide common defence, to promote general welfare and secure the blessing and liberty to us and our posterity."
And as rightly observed by Justice Harlan in the case of Jacobson v. Massachusetts: "Although the preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of the substantive powers conferred on the government of the United States or any of its departments."
A survey of preambles to the Constitutions of other countries shows that they not only make strong political, social, cultural and religious statements, but also promote specific and detailed ideologies. Some countries with history of revolution and warfare use preambles in their Constitutions to chronicle the events and accomplishments of the past generations. In other jurisdictions, Preambles are utilised to identify leading ideological and religious foundations such as workers socialism. For example, the Preamble to the Constitutions of Vietnam (1980) and the Peoples Republic of China (1982) chronicle these nations' exploits in warfare.
For Vietnam, it reads: Throughout their 4000-year history, the Vietnamese people have worked hard and fought hard to defend their country.... In the spring of 1975, the Vietnamese won total victory.
For the People's Republic of China, it reads: "China is one of the countries with the longest histories in the world. The people of all nationalities in China have jointly created splendid culture and have a glorious revolutionary tradition."
Under the 1976 Constitution of Cuba, pre-eminence was accorded to workers Socialism, Marxism and Leninism. The preamble reads, "We, Cuban citizens... Guided by the victorious doctrine of Marxism-Leninism... and having decided to carry forward the triumphant revolution.... Under the leadership of Fidel Castro... Aware ... that only under Socialism and Communism... can full dignity of human beings be attained..."
The preamble to the 1974 Burmese Constitution also contains a promise to enthrone socialism stated thus, "we, the working people... shall... build a socialist economic system by the Burmese way to socialism."
In the Preamble to the 1886 Columbia and the 1972 Bangladesh Constitutions, religious sentiments of these nations were highlighted. The Preamble of the former states: "In the name of God, Supreme source of all Authority." In the latter Constitution, the Preamble states: "In the name of Allah, the Beneficent, the Merciful... the high ideals of absolute trust and faith in the Almighty Allah... shall be the fundamental principles of this Constitution."
A careful reading of the preamble to the 1999 Constitution illuminates its goals as the firm and solemn resolution of Nigerians to live in unity and harmony as one indivisible and indissoluble nation, the promotion of inter-African solidarity, world peace, international co-operation and understanding. Other objectives of the 1999 constitution include the promotion of good government and welfare of all persons on the principles of freedom, equality and justice and the consolidation of the unity of Nigerian.
The preamble to the 1999 constitution of the Federal Republic of Nigerian specifically provides: "We the people of the Federal Republic of Nigeria having firmly and solemnly resolved: to live in unity and harmony as one indivisible and indissoluble sovereign nation under God dedicated to the promotion of inter-African solidarity world peace, international co-operation and understanding.
"And to provide for a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equity and justice, and for the purpose of consolidating the unity of our people: do hereby make, enact and give to ourselves the following constitution."
The above preamble to the 1999 constitution is in contradiction to the selective reading of the preamble by the opponents of the constitution that construe the preamble thus: 'We the people of the Federal Republic of Nigeria do hereby make, enact and give to ourselves the following constitution:"
The preamble reminds us that Nigeria is an indivisible and indissoluble sovereign state where sovereignty is traceable to the people and from whom the government derives its authority to govern in accordance with the constitution. It is also a reminder of Nigeria's sovereign status in contradiction to being a nation under imperial rule, military dictatorship or without a sovereign government.
The words "we the people" in the preamble however, do not mean that all Nigerians met to draft and enact the constitution. That is physically and factually impossible. As has been rightly observed, what these words, connote is that in the art of government, their is no single authority or person that is solely responsible for the governance of the populace. Rather, the government is collectively run for the common good of all persons who have some say in their governance. This means that political power resides in the people who exercise it through their representatives in the government of the state. In its total package the word 'people' includes all Nigerians irrespective of their place of origin, circumstances of birth, sex, religion, political opinions and status in society.
Operators of our past and present constitutions have constantly misconceived federal principles and inter-governmental relations. A Federal Government is a plural government, consisting of at least two tiers of government with powers being shared between the federating tiers of government within the federation. As such, there must be interaction between agencies and officials of the different tiers of government.
Unfortunately, interaction and inter-governmental relationships, which should ordinarily foster co-operation, have often resulted in confrontation and struggle for ascendancy between the various tiers of government and their officials. While some officials of the Federal Government, in the belief that might is always right perceive federalism as a weapon of confrontation. These divergent forces have continuously heated up the political system.
The controversies, which arose from the application of the Land Use Act under the 1979 constitution illustrates how operators of our constitutions negatively manipulate clear provisions of the law to the detriment of the citizens. Land is evidently crucial to the survival of the government and the governed. Land is the foundation of shelter, food and employment. Man lives on land during his lifetime and upon his demise his remains are kept in it permanently. Likewise a government has to exist on land, it cannot exist on the air or water. The Land Use Act was inserted in the 1979 constitution purposely to ensure that its provisions were neither altered nor repealed except in accordance with the procedures stipulated for constitutional amendment. The act has also been inserted in the 1999 Constitution. It has, however, been decided that notwithstanding its insertion in the constitution, the land use act is not an integral part of the constitution.
Under the Land Use Act, the state governor is trustee of land within the state and holds land in trust for the use and common benefits of all Nigerians. The state governor is empowered by the act to grant right of occupancy to any person or organisation. Land held by the Federal Government and its agencies at the commencement of the act were exempted from control by a state governor.
Where the Federal government and or any of its agencies subsequently require land in a state for the execution of federal projects, land can only be acquired through the state Governor. In such situations, the Federal Government is expected to notify the state governor that it requires land for its projects and on receiving such request, the state governor should acquire and make the land available.
How did the operators of the law in the Second Republic apply these clear provisions of the land use act?
In the former Bendel State, the state governor refused to make land available to the Federal Government for the construction of low cost houses, which the latter, had planned to sell at subsidised prices to the good people of the state. The Oyo state governor similarly failed to make land available to the Federal Government to build low cost houses.
The Federal Government, however, constructed some houses in Oyo State on land, which was neither acquired nor made available to it by Oyo State Government. As a result, the latter demolished 38 units of the federal low cost houses built by the Federal Ministry of Housing in the state. The federal minister of Housing reacted to the demolition of the houses, in the following words:
"The act (i.e. the Land Use Act) empowered the Federal Government to acquire the land on which the official residence of Chief Bola Ige stood, if it so wished and there was nothing the governor or any person could do about it under the act."`
Interaction and inter-governmental relationships, which should ordinarily foster co-operation, have often resulted in confrontation and struggle for ascendancy between the various tiers of government and their officials. While some officials of the Federal Government, in the belief that might is always right perceive federalism as a weapon of confrontation`
To be continued`
An autochonous Constitution for Nigeria: Myth or reality? (2)
Being excepts of the Inaugural Lecture delivered by Prof. Taiwo Osipitan (SAN) of Department of Public Law, University of Lagos recently
Wrongful perceptions of federalism impinged on the application of the clear provisions of the land use act and resulted in the avoidable confrontation between federal, Bendel and Oyo state governments. A careful reading of the provisions of the Land use act reveals the federal government lacks the power of direct acquisition of land in any state. Where the federal government requires land to execute federal projects, in a state. It must channel its acquisition through a state governor who, in turn, has a statutory obligation to acquire the required land and make it available to federal Government's request for land. He must make land available. A mandamus cause of action lies against a state governor who deliberately fusses to make land available for the execution of federal projects in his state.
Admittedly, there has been a breach of law, pertinent questions which require answers include, why should a state government, whose indifenes would have been the direct benefits of federal projects, demolish houses merely because they were constructed by the federal government?
The point which operators of our constitutions fail to appreciate is that fedrealism is neither synonymous with the battle for ascendancy between the federating tiers of government nor is it designed to promote ethnic demagogues. Federalism is all about cooperation, good governance and fostering of socio economic interests of the people who reside in a Federation. Surely, the ultimate losers in the hostilities between the Federal and Oyo/Bendel States are the good people of Oyo and former Bendel States who were deprived of the benefits of becoming proud owners of those demolished and unbuilt houses!
The evident co-operation which currently exists between the Federal and Ogun State Government under the present Constitution is heart-warming. It is noteworthy though that both Governments are controlled by the Peoples Democratic Party. The Sagamu-Abeokuta, and the Sagamu-Ijebu Ode Express Roads are Federal Roads and by virtue to the Federal Highway Road Act and Item 63 of the Exclusive Legislative List of the 1999 Constitution, these roads are under the control of the Federal Government. Yet, the positive impact of the Ogun State Road Maintenance Agency (OGROMA) on these two roads is all too visible. The Sagamu-Abeokuta road is currently being dualised by OGROMA, while the Sagamu-Ijebu-Ode Expressway Road has been resurfaced by OGROMA under the visionary administration of Otunba Justus Olugbenga Daniel, the Executive Governor of Ogun State.
The Federal Minister for Works recently promised to engage the services of OGROMA to construct part of the Lagos-Sokoto Road. Whether the dualisation and resurfacing of Federal Roads by the Ogun State Government is the result of Federal Government's promise to defray the expenses incurred by Ogun State Government on these roads is for the moment irrelevant. What is commendable is the evident co-operation between the two governments. The beneficiaries of the co-operation are the good people of Ogun State and other Nigerians who use these roads.
Lagos State, despite its common boundary with Ogun State and it status as the Nation's commercial nerve centre, has not been fortunate in her relationship with the Federal Government. When officials of the Federal Government are not preventing Lagos State officials from controlling traffic on Federal roads within the State, they are struggling with Local Government Councils officials in the State to take over and control Marina Car Park, which is evidently an item within the constitutional powers of Local Government Councils.
Interestingly under one of the past military administrations, there was the Control of Traffic (Temporary provisions) Edict of 1977 which enabled the State to regulate the use of vehicles by their owners on Federal and State Roads in order to reduce traffic on the roads. The right of the State Government to regulates use of vehicles on Federal Roads within the State was unchallenged by the then Federal Military Government.
Can the possible hostile treatment of Lagos State by the Federal Government be the result of the perceived confrontational attitude of the Executive Governor of Lagos State, Asiwaju Ahmed Bola Tinubu? Could it be as a result of the control of Lagos State Government by a party different from the Federal Government controlled Peoples Democratic Party? Is the hostility in any way connected with the preparation for the battle between Alliance for Democracy and the Peoples Democratic Party for the soul of Lagos State in 2007? Why should the powers of Lagos State Government to beautify and control traffic on Federal roads in the State be curtailed or foreclosed by the Abuja-based Federal Government. Can the Federal Government effectively control traffic in Lagos State from Abuja? In how many of the states controlled by the Peoples Democratic Party is the Federal Government controlling traffic on Federal Roads? Why should the Federal Government without Revenue due to Local Government Councils in some States before requesting the Supreme Court to decide on the legality or otherwise of the newly created Councils? The list of "why" is endless. The point being made is that these highlighted problems are unconnected with the autochthoy or otherwise of the Constitution nor with defects in the text of the Constitution, but are the result of the negative attitude of the operators of the Constitution, politicians and their supporters.
Fiscal federalism and resource control
Control of resources and the appropriate allocation of revenue derived from natural resources is one of the reasons for the clamour to restructure the federation. Under the 1960 and 1963 Constitutions, 50 per cent of revenue from natural resources were allocated to the region where such resources were located under the derivative principles. In calculating the quantum of revenue derived from a region for4 the purpose of determining the royalties payable, a region's continental shelf was regarded as part of the region.
Under section 162(5) of the 1999 Constitution, a natural resource producing state, is entitled to not less than 13 per cent of the revenue derived from the state. Unlike the 1960 and 1963 constitutions, which treated revenue derived from the continental shelf as part of revenue derived from the region, the decision of the Supreme Court in Attorney-General of the Federation and Attorney-General of Abia and others" creates a dichotomy between resources located on-shore and off-shore. It was decided that for the purpose of the application of the resources located on shore with the result that revenue from natural resources located off-shore are presumed not to have been derived from the littoral states.
The Supreme Court's decision evidently affected the financial fortunes of the littoral states, because most of the natural resources are located off-shore. The Federal Government partially abrogated the effect of the decision of the Supreme Court in the resource control case through the on-shore and off-shore dichotomy act of 2004. The act, which reduces the off-shore areas by 25 per cent, has been challenged by nineteen northern state governors and some south-west governors. The decision of the governors to challenge the constitutionality of the act, which seeks to give more revenue to the littoral states, where these natural resources are derived is bound to widen the gulf between the plaintiffs and indigenes of the oil producing areas, whose farming and aquatic lives have been and are still being disrupted as a result of oil prospecting. Perhaps we need to remind ourselves that a give-and-take approach will strengthen the federal structure.
Mr. Vice Chancellor, the 1999 Constitution, which has served as Nigeria's grundnorm since 29th May 1999, is admittedly not a perfect document for the obvious reason that it was drafted by mortals. The existence of enabling provisions on constitutional amendments in the 1999 Constitution and in constitutions of other countries corroborates the fact that there can be no perfect constitutions. We can definitely improve the constitution, but we cannot have a perfect document because perfection is the exclusive preserve of the Almighty God. There is merit in the clamour for political restructuring of Nigeria in order to ensure fair allocation of powers and resources. The 1999 Constitution evidently fails to sustain a fair equilibrium between the centralists and the stateists. We must appreciate the fact that a meaningful balance in the federal structure will only be achieved "when there is adequate autonomy granted to regional governments to protect the interest of the people while allowing enough transference of power to the central government to ensure single nationhood and enough control to protect the essential interests of the nation as a sovereign unit." Political and fiscal federalism, devolution of powers from the centre to the states, establishment of state police forces and the curtailment of immunities enjoyed by the president, vice-president, governors and deputy-governors are some of the issues which have to be addressed under the 1999 Constitution.
In addressing our constitutional problems, we are faced with different options. A decision on which of options to adopt will depend on whether we believe in the unnegotiated corporate existence of Nigeria or whether we perceive Nigeria as a mere geographical expression, consisting of persons of different values who have been compulsorily merged by imperialists and the time has come for Nigeria to be dismembered. I would counsel against Nigeria being hastily dismembered. There is strength in unity, especially during internal crisis and attack by external forces.
Sovereign national conference or constitutional conference?
If we opt for the corporate existence of Nigeria, an avenue must be provided for dialogue on the terms and conditions of Nigeria's continued existence as a nation. The constitution review committees set-up by the president and the National Assembly are definitely not the solution to the nation's constitutional problems. The National Assembly is also not the appropriate forum for these problems to be exhaustively addressed. We need a forum where representatives of all stakeholders will convene to address the nation's problems and arrive at a consensus on political restructuring and the terms of continued corporate existence of Nigeria.
A sovereign national conference has been suggested as the proper channel of addressing our constitutional problems. A sovereign national conference has been projected as the preferred option because of the assurance that the decisions arrived at, at the conference will not be altered by the government and they will become automatically binding. A sovereign national conference, however, raises constitutional problems in a nation that has a sovereign government in place. A sovereign conference is normally convoked in a nation without a sovereign government. The conference is sovereign because its resolutions have legal authority and are automatically binding due to the absence of a superior power to which the conference reports.
The 1999 Constitution has evidently established a sovereign government which is not subordinate to the government of any other country. Section 2(1) of the said constitution specifically declares that Nigeria shall be "one indivisible and indissoluble sovereign state." It will be imprudent of the sovereign Federal Government to legislate itself out of existence by acceding to the clamour for a sovereign national conference. A constitutional conference, in contradistinction to sovereign national conference, is a preferred option.
The Federal Government should consider it imperative to organise a constitutional conference where the identified defects in the 1999 Constitution would be addressed. The conference should comprise of elected representatives of the people and representatives of identified interest groups, registered professional bodies, labour org
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