Sunday 19th November, 2023
Posted by: Prince Ahmed Hassan (TOHA)
BY: PROF. MIKE OZEKHOME, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D.Litt, D.Sc.
INTRODUCTION
Two weeks ago, we took a break from this series to write on the exit of a
Legal Colossus, Prof. Ben Nwabueze, San, Ll.D. having discussed
extensively on the following: Nigeria’s Earlier Panacea through True Fiscal
Federalism, The Asian Tigers: How They Did It, Lessons for Nigeria from
the Asian Tigers and what of Europe and the U.S”, The Big Picture, in our
last outing. We shall today, take a look at the Imperatives of Structural
Reform: How do we Reform Structurally, A brand new or amended
Constitution? And Structural Reform through a New Constitution. Please
read on.
THE IMPERATIVE OF STRUCTURAL REFORM: HOW DO WE REFORM
STRUCTURALLY?
A BRAND NEW OR AN AMENDED CONSTITUTION?
Many solutions have been suggested, with constitutional amendment or
reenactment top of the list. The reason is obvious: it is a country’s birth
certificate; the foundation, basis or as we call it in law, the grundnorm. In
this regard The 1999 Constitution is the product of the military led by
General Abdusalami Alhaji Abubakar. The explanatory note to the said
Constitution is worth considering as it explains the purport of the
Constitution. The explanatory note to the 1999 Constitution (the subject
matter of this article), states thus: “The Decree promulgates the
Constitution of the Federal Republic of Nigeria 199 into law and
provides for the said Constitution to come into force on 29 th May,
1999.” The explanatory note above contains extra information to the effect
that the explanatory: “…note does not form part of the above Decree
but is intended to explain its purport.” The term “promulgate” means
to spread an idea, a belief, etc. among the people.
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Whose beliefs and ideas are the military spreading and at what point did
this idea or belief come into force? It is pertinent to note that the 1999
Constitution divested the military over the governance of Nigeria and re-
enforces the original ideas and beliefs of the people at the time they got
independence.
Prof. Ben Nwabueze on ‘Further Thoughts on the Nigerian Constitution
and Polity, noted that the declaration ‘we the people of the Federal
Republic of Nigeria [are] one nation under God’ is only an aspiration and
not a reality. The learned author stated that the statement implied that “we
are one people” and submitted that not only are we not one people, we are
not yet one nation. Looking at the prevailing challenges confronting the
unity of Nigeria now, one will agree with the learned author. The country
has been polarized now. However, the preamble is the ideas being spread
at a time the nation was emerging from dictatorship. The Abacha regime
was the precursor to that declaration. That idea was promulgated at a time
the nation was emerging from the dungeon and when national interests
were long forgotten. The preamble to the 1999 Constitution sheds light on
how the entire constitution should be construed. The Constitution is for the
promotion of good governance and welfare of all persons in Nigeria, on the
principles of freedom, equality and justice, and for the purpose of
consolidating the unity of Nigerians. I agree with the views of the mythic
that there was never a time Nigerians gathered to fashion the 1999
Constitution. The 1999 Constitution was promulgated by the Military and
since it came into force, the people through their democratically elected
lawmakers have not abolished or suspended the operation of the
Constitution. What the people have done are piecemeal amendments. By
usage, however, the people have adopted the ideas in the 1999
Constitution. Thus, it is safe to submit that the expression “we the people”
is a reality.
In analysing this phrase ‘’we the people’’ it will be necessary to have an
amplified and microscopic view of the component words of the phrase. In
doing justice to them it will be proper to begin from the first word in the
phrase viz: WE: The word “WE” is a pronoun that is used to denote one
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self and another or others as the case may be. This therefore implies that
for the word “WE” is referring to not just a person but a group of persons
who are most likely in agreement and having the same motive. Anything
other than this will amount to the misapplication of the pronoun “WE”. This
analysis also implies that wherever the pronoun “WE” is used, it connotes
that the word emanated from the collective ideology of a group of people.
Conversely, the application of the word “we” in the preamble of the Nigerian
constitution connotes that the constitution is a document that emanated
from the Nigerian people and that even though every Nigerian did not
directly contribute to the making of the constitution, a vast percentage of
the Nigerian populace, through their representatives, was involved. Even
though this position has so much criticisms, this is the general view of the
word “WE”.
THE PEOPLE: Whenever the phrase THE PEOPLE comes to mind,
another thought that follows is that, a group of persons are involved. The
phrase which connotes that a group of people are involved, is also used to
refer to a given set of persons who share the same ideology. The
implication of this phrase in the preamble of the 1999 constitution of the
Federal Republic of Nigeria and other democratic states of the world is that,
the Constitution is for the people, (i.e) the Constitution, having a root in
the people, is formatted by the people to be a standard of conduct for
the people. This is what is meant by the phrase THE PEOPLE. This in
another hand will also imply that, only the particular people that were
referred to, are the people who have business to do with the subject in
question.The tendency to concentrate power in the chief executive, while
tenable in advanced countries with all the institutionalized means of
checking dictatorship makes the system vulnerable in an African setting.
Thus, any system that reinforces concentration of power in one person will
provide fertile ground for breeding dictatorship. One of “the perils” of
presidentialism is political gridlock resulting from competing claims for
legitimacy by the President and the Legislature which inevitably slows
down governance process. This serves as another factor that supports a
re-consideration of presidential system in Nigeria.
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No doubt, the separation of power provided in the Constitution is to curb
the tendency of tyranny and to reduce the work load of one-arm of
government. The expectations of the constitution makers are for
cooperation between the three arms of government. However, the
expectation turns to be a mirage when the relationship between the
executive and the legislature is frosty. According to Maman & Dahiru, this
can make or mar democracy. The relationship between the two arms of
government has impacts on democracy as a system of governance. It can
facilitate and deepen democracy from which the nation can benefit
immensely. A frosty relationship on the other hand, can lead to slow and
even at times bad governance. The struggle between the 8 th National
Assembly and the executive arm almost degenerated to superiority contest.
With regards to cordial relationship between legislature and the executive,
the parliamentary system has this enduring attribute. This is because of the
fusion of both. As a result, it will not be difficult for the legislators to explain
clearly government policies because the interface between the executive
and the legislature will make them to be on the same page. Thus, the
switch to the parliamentary system will not only trim the government but
also cure the ills of dissipation of energy by the executive and the
legislature on mundane issues. In spite of the alluring attributes of the
parliamentary system, one cannot dismiss is fundamental weaknesses.
One of such defects is that the government is not as strong as expected.
The government can be brought down within days through a vote of no
confidence in the parliament which is regarded as the crown jewel of
parliamentary democracy. It is believed that such flexibility will not augur
well in a polity with no strong sense of nationhood like Nigeria.
STRUCTURAL REFORM THROUGH A NEW CONSTITUTION
Complaints about the federal structure go as far back to the pre-
independence period, when minority groups felt dominated by majority
groups.
The Willink’s Minority Commission of 1957, which looked into the matter,
recommended the inclusion of a bill of rights in the Independence
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Constitution, to guarantee basic fundamental rights; rather than creating
states for minority groups. But by 1963 the carving up of the country had
begun, and eventually by 1 October 1996 there were 36 states. The
creation of states grants access to public offices and infrastructure for local
elites. It also creates new majority and minority groups in the new states.
Unviable states have proliferated, dependent on the common pool
revenues and unable to fund their bureaucracies. Scholars have attentively
stated that the fiscal arrangement, especially the formula for sharing the
common pool account, is not an incentive for states to produce revenue.
States angle to get more revenue share from the central pool rather than
generate revenue within their territories.
State governors make the complain that the share of revenue that goes
to the national government is too large, making competition for offices at
the center too intense. They call for revision to grant more revenue to the
states. Some of the governors also call for more responsibilities, to get
access to ways of generating revenue. Some governors believe that
decentralization, when extended to policing, would also improve security.
In not too far back, everything in the political space of Nigeria is fraught
with some damning or potentially disturbing undertones which keep the
citizenry in perpetual frenzy. Our case is worsened by the fervency and
maddening frequency of messages of doom, conflagration, pestilence, and
all sorts of conspiracy theories and morbid predictions churned out on the
ubiquitous social media networks. If it were possible to do a holistic national
diagnostic on all the estimated 215 million Nigerians within a space of 48
hours that it took the latest special presidential convention of the ruling
political party, the barometer would have crashed into nether regions,
making our laboratory technicians collapse in bewilderment.
Such is the weight of our fears and follies that we continually anticipate the
catastrophic, even when we look up to the Supreme Being for the
miracle of surviving another year. Yet, our leaders continue to act and
speak as if they are in control of the very air we breathe, and thus have the
capacity to moderate the unknown or mitigate the frightening. (To be
continued).
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THOUGHT FOR THE WEEK
“The first panacea for a mismanaged nation is inflation of the currency; the
second is war. Both bring a temporary prosperity; both bring a permanent
ruin. But both are the refuge of political and economic opportunists”.
(Ernest Hemingway).
LAST LINE
God bless my numerous global readers for always keeping faith with the
Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof
Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc.
kindly, come with me to next week’s exciting dissertation.
