Still On The 1999 Constitution – By Anthony Akinwale, Guest Writer

Still On The 1999 Constitution – By Anthony Akinwale, Guest Writer

Fr. (Prof.) Anthony Akinwale, OP

The subtitle of Richard Bourne’s book, Nigeria: A New History of a Turbulent Century, sums up the story of the first one hundred years of amalgamation of northern and southern Nigeria. The book was published to coincide with the first century of amalgamation. Indeed, it has been a turbulent century for Nigeria.

Bourne recalls that in 1950, during the Macpherson Constitutional Conference which took place here in Ibadan, each regional delegation pushed its different agenda. For understandable reasons, the northern delegation was hesitant to ask for independence. Sir Ahmadu Bello saw the north as quite different from the westernized south.  A western-style parliament would be dominated by southern parliamentarians already exposed to westernization more than their counterparts in the north. The northern representatives under his leadership were pushing for a return to pre-amalgamation status quo, that is, separation from “one Nigeria”.

For his part, Obafemi Awolowo, leader of the Action Group, had proposed that a clause be included in the Constitution that would have made it possible and permissible for any part of the then envisaged federation to opt out. With the benefit of hindsight, one can say that the proposal, if it had been accepted, would have prevented the genocidal tragedy of the Nigeria-Biafra war whose wound is being reopened by careless utterances of those who ought to know better.

Awolowo wanted a federation of strong regions with a weak central government. But, according to Bourne, proposals for federalism met with opposition from student leaders at the University College Ibadan. One of those students, Emeka Anyaoku, who later became Secretary General of the Commonwealth, wrote to Awolowo, Azikiwe and Bello against federalism and in favour of a strong unitary system.

Later, while serving a jail term in Calabar prison, having been tried for treasonable felony, Awolowo’s reflection on Nigeria’s search for a most suitable constitution led him to write the book Thoughts on Nigerian Constitution in which he stated: “In our view, three factors combine to produce political stability, the type of constitution, the form of government, and the calibre and character of political leaders in and outside government” (Obafemi Awolowo, Thoughts on Nigerian Constitution, Ibadan: Oxford University Press, 1966, p. 29).  We Nigerians need to ask ourselves: is any of these factors found in Nigeria today?  If the answer is in the negative, then we at least know why we are standing in the rain of instability.

In that same book, Awolowo argued that the constitution of a country that is bilingual or multilingual must be federal. Its federal parliament should not have powers to take over the government of any state under any circumstance. Neither should state governments have the power to dissolve local councils. But what do we now have in the 1999 Constitution?

The 1999 Constitution, by a military decree, declares Nigeria to be indivisible. It is decidedly against dissolving Nigeria, thus disagreeing with the proposals of Bello and Awolowo. The same Constitution, perhaps to secure indissolubility, has set up Nigeria in such a way that the state is more powerful than the citizen, and the government at the centre is more powerful than governments in the states. And so, even though it is the “Constitution of the Federal Republic of Nigeria”, it in fact installs a unitary state. Here again, the Constitution fundamentally disagrees with the proposal of Awolowo and the Sardauna on federalism. Buttressing these assertions is not difficult.

Section 2 subsection 1 of the 1999 Constitution states: “Nigeria is one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria.” This section is an exact replica of Section 2 Subsection 1 of its identical twin sister, the 1979 Constitution. It is worth noting that this is unlike section 2 of the 1963 Constitution of the Federal Republic of Nigeria which makes no mention of indivisibility, no mention of indissolubility, and no mention of sovereignty or where it resides. The 1963 Constitution simply states: “Nigeria shall be a Federation comprising Regions and a Federal territory and shall be a Republic by the name of the Federal Republic of Nigeria.”

The provision of section 2 of the 1979 and 1999 Constitutions bears grave implications. First, it places sovereignty not in the hands of the people but in the hands of the state, and, by so doing, makes the state more powerful than the citizen.  If sovereignty belongs to the state and not to the people, the state cannot be held accountable by the citizen. Now, officials of a state that cannot be held accountable by the citizen can get away with humiliation, intimidation and murder of the citizen. This has been our experience in Nigeria. The state, which is a conglomeration of institutions established by a constitution to protect the land and the citizen, ought to be subservient to the citizen. But in Nigeria, the Constitution, as written, makes it possible, even permissible, for the state to lord it over the citizen.

Secondly, this section of the Constitution effectively provides a shelter for those who repeatedly assert that the unity of Nigeria is “non-negotiable”. As I have written on an earlier occasion, the only non-negotiable unity is the unity that God is. There is not, and there can be no division in God. But there can be division within a country.

Thirdly, this provision of the Constitution makes it unconstitutional to even clamour for secession. It means all the clamour for Biafra and Oduduwa Republics is outlawed by the constitution.

Fourthly, and this is dangerous, Nigeria’s unity is a forced unity. A forced unity is a violation of freedom of association.  It is dangerous because, in practical terms, even if any region or ethnic community were to consider itself marginalized and not benefitting from the union because of any rightly or wrongly perceived domination by another ethnic or regional community, no ethnic or regional community in the country can opt out of this enforced union without violating the constitution, and such violation will most certainly be met with the force de frappe of the sovereign state with its seat at Abuja.

Fifthly, the provision of section 2 of the 1999 Constitution collides with section 40 of the same Constitution which says: “Every person shall be entitled to assemble freely and associate with other persons.” Freedom to assemble frees and associate with other persons goes with freedom to separate oneself from an association or group of persons.

The dangerous flaws and contradictions in the 1999 Constitution call for far-reaching constitutional amendments, if not a new constitution altogether.  But, as urgent as the task is for ensuring that we live in a stable polity, there are needlessly formidable obstacles to constitutional amendments. The most formidable is to be found in Section 9 of the 1999 Constitution which not only makes such amendment a legislative act, but also an uphill task.  To be noted here is the fact that section 4 the 1963 Constitution similarly makes any alteration of the Constitution an act of parliament.

According to Section 9 Subsection 1 of the 1999 Constitution: “The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution.”

Subsection 2 states conditions that must be met for any constitutional amendment. “An Act of the National Assembly for the purpose of altering the provisions of this Constitution, not being an Act to which section 8 of the Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.”

When it comes to any amendment of section 8 or Chapter IV of this Constitution, which, by way of clarification, deal with creation of new states, adjustment of state boundaries, creation of new local governments and adjustment of boundaries of local governments, and fundamental human rights, conditions to be met are even more stringent. Thus section 9 subsection 3 states: “An Act of the National Assembly for the purpose of altering provisions of this section [that is, Section 9], Section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of the each House, and also approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.”

With these stringent demands, Nigerians not only have a dangerously and unjustly flawed constitution in their hands, amending it is, in practical terms, a near mission impossible. Moreover, in the current dispensation, right to freedom of expression by way of a right to peaceful assembly provided for in sections 39 and 40 of the same constitution, is practically nullified by the same constitution in so far as it places sovereignty in the hands of the state and not in the hands of the people. Agents of the “sovereign state” have been known to abuse this attribution of sovereignty by abusing powers, thus criminalizing, prevent and even punishing peaceful demonstration.

A constitution ought to protect the sovereignty of the people. But this constitution does not.  A constitution ought to protect the rights of the citizen. But the 1999 constitution does not. The 1999 constitution provides for state and local governments with legislative capacity. But the same constitution deprives them of capacity to enforce their laws by denying them the right to establish their own police. It denies them this right by placing security on the exclusive legislative list. In a recipe for instability and insecurity, it provides for one police force to secure such a vast country from Abuja. Thus, in matters of security, and in many other matters, the federal government takes over the functions of state governments, and state governments take over the functions of local governments. State governors dissolve elected local governments and install caretaker local governments.  And, when they benevolently organize local government elections, all the seats are won by the party to which the governor belongs.

It would amount to a great disservice to this country to continue to pretend as if we did not know the cause of our problems. We must not continue to feign ignorance of what restructuring means. In simple terms, it means correcting injustice.  Injustice is the absence of right relationship. Restructuring is the restoration of right relationship in the restoration of justice.  The relationship between the government and the citizen is unjust by virtue of a constitutional provision that places sovereignty in the hands of the state and not in the hands of the citizen. The relationship among the three tiers of government is unjust because of a unitary constitution deceptively called a federal constitution. There is injustice in our polity. But security agencies say you are not even allowed to protest peacefully. In other words, crying when you are in pain is forbidden by the same person who inflicts the pain.

There is an urgent need to restore right relationship in Nigeria. In the absence of justice as right relationship, we live in instability. We cannot make progress as a country if things continue this way. What then must we do?

First, we must embark on bold and fundamental changes to the 1999 Constitution. The solution cannot be found in making cosmetic changes on the constitution. The starting point of our much-needed constitutional amendment is section 9 of the 1999 Constitution. Amendment of the Constitution should not be a legislative act but by a referendum.

Secondly, after section 9, the provision of section 2 needs to be modified such that it shall explicitly make sovereignty reside not in the state but in the peoples of Nigeria. That is needed so that the terms of engagement between the government and the citizen needs to change. When sovereignty resides in the state and not in the people, the state can get away with murder and theft. Agents of a sovereign state become arrogant, insolent, overbearing, oppressive and repressive.

Thirdly, the issues of control of security and control of oil wealthy, which, in my opinion, are what influenced the anti-federalist provisions in the 1999 Constitution need to be attended to. We need to track down all other anti-federalist provisions in the 1999 Constitution and modify or abrogate them. Without a truly federal constitution, the unhealthy relationship among ethnic, regional and religious communities will make us live in country of prolonged turbulence.

We Nigerians are not unintelligent. We can understand what is at stake. Whether we and our leaders have the political will to do the needful is what is in doubt.

This reflection is un-going. This is only a provisional conclusion. It is written to make the point that Nigeria truly needs true federalism.

© Father Anthony Akinwale, OP, is the Vice-Chancellor of Dominican University, Ibadan, Nigeria.



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