By Muiz Banire SAN

When, last week, the Senate of the Federal Republic of Nigeria commenced the jamboree called public hearing across the various zones of the nation for the purpose of amending the present 1999 Constitution (as amended), not so much was the expectation of observers and, justifiably so, at the conclusion of the public hearing, not so much was achieved. The outcome of the public hearing was not surprising as the package was from the onset flawed, particularly in terms of publicity. The language of communication in the first instance was English, which excluded those who could neither read nor write in English. This group constitutes not less than 50 per cent of the population, conservatively. I never saw anywhere where the proceedings were conducted in native languages nor was communication made in such languages despite the fact that the proceedings were held in zones.

At the end of the day, it was an elitist programme, which, again, regrettably, was not substantially even embraced by the calibrated elite by design. The truth is that most of the citizens that could neither write nor read in English are most times often wiser and knowledgeable than the grammarians. They are all stakeholders in their own right and some of them, having participated in politics at the grassroots, have deep understanding of the problems confronting the people politically. This category of people could have enriched the conversation by simply adopting both English and the native language relevant in each particular zone. The publicity of the event was equally not great, as a substantial reliance was placed on electronic and print media. How many of these people have access to electronic gadgets in the first instance, and, where some do, where is the energy to power them, even if they can afford to pay? In the same vein, can they afford to buy newspapers?

Of course not! Ordinarily, one would have expected the various community development associations, including the vigilance groups, to have been actively involved through the senators representing the constituencies, the purported honourable members, the state and local government machinery. Alas, this was not to be as those state and local government officials were not only disinterested but actively busy with other things of personal interest to them. Little wonder that, in virtually all the venues that I monitored, this sizeable concerned group was excluded, except for some a few civil society groups. In fact, a negligible number of governors attended the public hearings.

Most importantly, traditional rulers and religious leaders were absent for reasons ranging from disillusionment to lack of information. It is, therefore, not surprising to find deserted halls in terms of attendance. One callous thing is hosting it in inaccessible places to members of the public. In the circumstance, I suspect that, as at now that the preliminary exercise is concluded, the Senate must have succeeded in talking to itself and not the people. To worsen the situation, only registered and memorandum-presenting individuals were permitted entry and granted floor for ridiculous and unreasonable minutes to make presentations. This is simply lack of seriousness. I would have expected the exercise to last at least a week, five days at the minimum, if any meaningful engagement is to be done.

This is already budgeted for and shouldn’t be a source of worry, more so, most hosting states funded the activity, at least, partially. Why the hurry, except for the fact that our senators had other important commitments than this? One, however, wonders what could be more important than the grundnorm of the country, particularly now that various agitations are ongoing. God, give us leaders and not dealers. Do the senators realize that the entire electoral system on the strength of which they were elected and the basis on which the various agitations can be resolved is what is at stake? Notwithstanding this shaky beginning, however, the question is, is the exercise worth its while? Should we be amending the current constitution or replacing it, as being variously debated by Nigerians?

I had the opportunity of participating in a discussion of this nature with the Fixpolitics Initiative, where I was able to ventilate my view. Let me be heard loudly and clearly that I belong to the school of thought that says the Constitution of the Federal Republic of Nigeria deserves nothing than outright replacement. The amendment embarked upon will eventually turn out to be an exercise in futility. Why do I say so? A peep into the constitutional history of Nigeria will unveil the fact that during the colonial and military eras, all improvements to the nation’s constitutions came by way of replacement. If my memory serves me right, the current attempt constitutes the sixth effort from 1999 to date, with no remarkable progress. The amendments that sailed through continue to compound the headaches of the country. Nigeria had the Clifford Constitution in 1922 on the strength of which the electoral system was introduced into the country, which largely excluded the participation of most Nigerians by means of a qualified franchise.

On the ground of this and other defects, the Richards Constitution of 1946 came into being. Again, except for the reduction in the franchise qualification threshold, no significant improvement was made except catering for the country’s diversity. There came after the Macpherson Constitution of 1950, which enabled Nigerians to participate in the constitution-making process and expanded the parliamentary representation and gave birth to the first federalist attempt. The political wrangling of that era truncated the operation of the constitution and led to the evolution of yet another document called the Lyttleton Constitution. It was under this constitution that the country became a federation of North, East and West and Southern Cameroons, with the latter eventually exiting through a referendum held in February 1961. This Constitution terminated appeals to West Africa Court of Appeal and replaced it with the Supreme Court of Nigeria.

The interesting event was that, in 1956, when Northern Nigeria, upon disagreement with the South, demanded secession from the country. This is just to refresh our memory that the call for secession started in the North, much earlier than that of the East and the current agitation for same in some other parts of Nigeria. Hence, there is nothing to get agitated about secession. With the eventual granting of independence to the country, a new constitution called the Independence Constitution arrived in 1960. This constitution retained the federal structure and consolidated it through the supremacy of the Constitution in order to protect the minority. However, the Queen was still retained as the Head of State, while the Judicial Committee of the Privy Council remained the country’s apex court. Towards actualizing true independence for the nation by making the country’s President the Head of State and rendering all appeals to terminate at the Supreme Court, coupled with other issues, a new constitution was birthed and christened the 1963 Republican Constitution.

This constitution conferred regional autonomy. Unfortunately, the constitution never thrived long due to the coup d’etat of 1966. From then till the time the 1979 Constitution was decreed into existence, the military ran the affairs of the country through decrees. The 1979 Constitution, which was a product of a Constitutional Conference, was eventually suspended due to the military coup of 1983 by the then Gen. Muhammadu Buhari. In 1989, there was yet another constitutional attempt but ill fated because of the annulment of the June 12 presidential election. Upon the demise of Gen. Sani Abacha as Head of State, the then new Head of State, Gen. Abubakar Abdulsalami, concluded the efforts of the Abacha administration in fashioning a new constitution for the country. This is the current 1999 Constitution, with its extant amendments.

From the above, it is obvious that it was only during the civilian administrations of 1999 till date that amendments continue to take place, regrettably, with the country’s headache transforming into migraine. This tokenistic approach has not helped the country as the efforts continue to make the constitution voluminous, complex and contradictory. Apart from the singular fact that the current Constitution of 1999 is not a product of popular participation, which makes it a fraudulent document, it seems not to represent the consensus of the people as it was never subjected to any referendum. It is, therefore, no news that the document has not met the country’s desire for an orderly and peaceful society. Agitation continues to mount daily to the extent that some parts of the nation are calling for secession. The least demand currently on the nation is the restructuring of the country.

These are matters challenging the fundamental basis of the nation. Matters of this nature cannot, in my view, be subjects of amendment but a new Constitution altogether. There is no doubt in mind that except there is active engagement of the different ethnic nationalities by way of national conference, or the revisit of the 2014 constitutional conference report, peace will continue to elude the nation. As you can infer from the historical preview above, even in matters that were not as germane as this, the colonial masters ensured the drawing up of new documents always. Even the military approach was no exception. Let me, therefore, state that the product of this exercise again will complicate further the already bewildered constitutional state of the nation. As remarked above, the volume of the Constitution is certainly becoming unreasonable, unwieldy with unintelligible, contradictory and complex provisions.

The United States of America, with the biggest democracy, does not parade this type of document as a constitution. The Constitution of America is not more than a pamphlet that contains the fundamental basis of existence of the nation. All other issues are accounted for by way of subsidiary legislations. A Constitution is meant to be a mere legal framework that is complemented by other laws. The current state of the Nigerian constitution is unenviable and must be purged of all non-fundamental provisions and issues. The sad implication of the current amendment approach is to deny dynamism to the document. Most times that issues of recurrent nature are inserted in the Constitution, we make it impossible to adapt them to the exigency of the moment. Worse off is the amendment processes stipulated in the Constitution. A good narrative is the incorporation of the Land Use Act in the Constitution. Today, all well meaning Nigerians know that most of the provisions are not only due for overhaul but are spent.

Again, a peep into the provisions relating to the creation of local governments and those relating to the appointment of judges, amongst others, will demonstrate the confusion inherent in the present Constitution. Thus, the afflictions against the current Constitution are too grave to be remedied by amendment. The only viable and realistic option is to replace it totally. People wonder how that is doable under the present constitution that seems not to make provision for same. I submit that there is a concept of amendment by replacement that is applicable. The document can be amended by repeal and enactment of a new one. Again, remember the doctrine of necessity! Furthermore, as in progressive societies, a referendum is pertinent to the new arrangement. This is a way to truly validate any eventual document agreed upon. In the light of the above, there is no doubt that the present processes of amending the Constitution is a step in the wrong direction and amounts to another scam, following the footsteps of the earlier exercises. The process must be halted immediately and a new process of birthing a new Constitution embarked upon.

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