Major Contentious Issues in the 1999 Constitution of Nigeria.
INTRODUCTION:
Since independence, Nigeria has had several attempts at a workable Constitution. Other nations have trodden a similar path. For instance, following the Declaration of Independence and the Revolutionary War in 1776, the original 13 States of the United States of America operated an Article of Confederacy, a necessary but unwieldy document that institutionalized a central government.
The Article lasted for 8 years before it was jettisoned for the current Constitution of the United States.
Casting our sight at other nations, we can see that different Constitutions lay emphasis on different national aspirations. The patriotic agitations for Constitution review in Nigeria have questioned the legitimacy of the 1999 Constitution mostly on the ground that it was imposed by the departing military in 1999 without the benefit of a plebiscite, referendum or national conference. Its acceptance in 1999 was provisional, a kind of modus vivendi to ease out the military and pave the way for national rebirth-democracy and reconstruction. This paper therefore is an attempt to examine the major defaults of the 1999 Constitution of Nigeria.
A fundamental flaw of the 1999 Constitution is the lack of consultation and participatory input of the people it’s directly affect. Nigerians as well as the Senate are fully aware of the shortcomings, ambiguities, lack of clarity and even confusing provisions of the 1999 Constitution. And the Senate has severally attempted to address some of these issues.
These past efforts may have fizzled out, but records of the issues and determination to face them for the sake of the nation never deserted from Nigerians. Evidence abounds in a number of national constitutional conferences held to discuss generative issues of national interest and unity.
There is a concept in political science called "continuity in governance." On the very surface of this concept, it is assumed that a country needs continuity in its government to continue to meet the demands of modern day governance. It’s not prudent for members of a government to be elected out of office in one election as that would not augur well with the above concept. But in Nigeria, with its current democratic structure, theoretically, all in government from the president to the members of the house and senate to even state governors and legislators can all be voted out in one election. This and a couple of other notable defects seriously undermined the strength and elasticity of the 1999 constitution to protect our democratic, social and heterogeneous structures and ideology.
Happily, a broad national consensus seems to indicate a few of the flaws areas in the 1999 constitution, namely–:
•The Electoral System.
•Land Reforms and State creation.
•The system of Local Govt Administration: funding, creation & autonomy.
•Rotation of power.
•Revenue & fiscal allocation.
•The Absence of Gender Equality-Women Discrimination.
CONCEPTUAL CLARIFICATIONS
The concepts of constitution, constitutionalism, constitution making and resource control have assumed great prominence and importance in recent times in Nigeria. Constitution has been defined in various ways. A Constitution has been defined as the embodiment of all the political, economic, social, cultural, religious and even historical forces conditioning the perception of a people at any given time and powerful enough to be isolated and accepted as a guide for future action (Okoli and Okoli,1990). The constitution is a collection of norms and standards according to which a country is governed (Anifowose, 1999). A Constitution has also been defined as the totality of the rules and regulations, both legal and non-legal which ordain, order, regulate and sustain the government of a given country (Bagehot,1949). Others define a constitution as a set of principles, fundamental rules and practices of government, written and unwritten, which establishes the major organs of government, allocates to them their powers, defines the rights of the citizens and the relations between them and the state. Another popular definition is that which defines a constitution as the basic or fundamental law of the land, which contains the rules, conventions, and other practices by which a society governs itself.
According to Justice Albie Sachs of South Africa, constitution is the autobiography of a nation (I-IDEA, 2000). The report of the Presidential Committee on the Review of the 1999 Constitution defines a constitution as the body of rules in accordance with which the powers of Government are distributed and exercised. (P1). A constitution has also been described as a contract, which describes the conditions under which the peoples of a nation coexist (I-IDEA, 2000)
From the above definitions, it is clear that a constitution may contain rules about how those who govern are to be selected or changed, how they are to behave in office and the relationship between the organs of government. It also shows the relationship between the government and the citizens and even amongst the citizens. The importance of constitution in a country cannot be overemphasized. As Georges Bidault noted, “the good or bad fortune of a nation depends on three factors: Its constitution, the way the constitution is made to work and the respect it inspires”.
MAJOR DEFAULTS OF THE 1999 CONSTITUTION:
There are problems with the process of making the 1999 constitution as well as the content of the constitution. The constitution was made during a military regime. The constitution was approved by the Armed Forces Ruling Council made up of 26 persons all males. The people did not participate in the process of making the constitution. This is why the preamble which begins with “WE THE PEOPLE of the Federal Republic of Nigeria…do hereby make, enact and give to ourselves the following constitution” has been severely criticised in Nigeria as being a false claim (Kuye, 2001). This is why we can say that although the 1999 constitution is a legal document, it is certainly not legitimate.
The content of the 1999 constitution does not take into account the political history of the country. In addition there are a lot of inconsistencies and provisions that do not meet the wishes and aspirations of the people. A few examples will illustrate this point. First and foremost, the history of Nigeria shows that it is a federal system. But the constitution is very unitary. There is over concentration of powers at the centre. The constitution establishes a judicial council to control the appointment, promotion and discipline of both state and federal judicial officers. Secondly, the language of the constitution is problematic in two respects. It is written in masculine gender as if there are no women in Nigeria. Again, it is written in legal jargons that are very difficult to understand. The trend today is to write constitution in a simple language that the average person can understand. Thirdly, the constitution does not guarantee economic, social and cultural rights. Provisions for adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, unemployment and sick benefits and welfare of the disabled are provided for under chapter two titled fundamental objectives and directive principles of state policy. These provisions are not justiceable under the 1999 constitution and cannot be enforced. Meanwhile, these are the issues on which majority of Nigerians want priority attention. Fourthly, there is a lot of inelegant drafting. For instance, section 222 dealing with the registration of political parties gives the impression that political parties only need to register with the Independent National Electoral Commission (INEC) but Section 40 gives the proviso that INEC will have to accord recognition to the parties. Another example of inelegant drafting is Section 156, which prescribes the same qualifications for members of Federal executive bodies of which INEC is one and members of the House of Representatives. Meanwhile, Section 65 gives membership of political parties as one of the qualifications for becoming a member of the House of Representatives. This means that members of INEC charged with the responsibility of organising and supervising elections in the country must be members of political parties. We do not think that this is the intention of the constitution. Too, electoral petition processes should not be completed before any elected person is allowed to take oath of office is another contentious issue. Since the annulment of Anambra state gubernatorial election in 2006, there have been increasing call for reconsideration of the issue. Although the Supreme Court has rule that an elected official’s tenure starts from the day he or she takes the oath of office, some Nigerians are of the view that elections time table should provide sufficient time for termination of petition.
Moreover, the 1999 constitution not only continues the marginilisation of women but also discriminates against women. There is no specific equality clause. There is no affirmative action clause. Whereas Section 26 makes it possible for any man to confer citizenship on his foreign spouse by registration, the same right is not extended to women. In addition, the constitution does not provide a liberal regime for political parties to operate. Finally, the constitution vests all the resources in the country on the federal government. There is no doubt that this is a negation of the principles of fiscal federalism. We cannot but agree with Ihonvbere when he argued that “ the 1999 constitution failed to address in its entirety the character of the state; the nature of the custodians of state power; the critical issue of hegemony and the inability of the elite to initiate a national project; the national question, production and exchange relations; and other primordially determined or constructed identity questions.(Ihonvbere, 2000)
CONCLUSION:
Constitution making has always been a challenging issue in any polity. Because it is expected to put together the aspiration, commitment, values and agreement of different communities, debates can be polarising, contentious and in some cases conflictual. These defaults issues should be viewed as part of the process of building consensus and strengthening our democracy. As polarising as these issues are, with robust engagement, inclusive participation and process-led initiatives we can resolve the contentions and agree on some of the issues.
REFERENCES:
Anifowose, Remi (1999), “Constitution and Constitutionalism” in Anifowose, Remi And Enemuo, Francis (Eds.), Elements of Politics. Lagos, Malthouse Press Limited.
Kuye, Omowale (2001), A Review of the 1999 Constitution of the Federal Republic of Nigeria. Ibadan, Fountain Publications Limited.
Bagehot, W.(1949), The English Constitution: Origin of Modern Constitutionalism. London, Harper and Row.
Ihonvbere, J.O. (2000), Towards a New Constitutionalism in Africa. London, Centre for Democracy and Development (CDD) Occasional paper Series No 4.
International Institute for Democracy and Electoral Assistance I-IDEA (2000), Democracy in Nigeria: Continuing Dialogue(s) for Nation building.