CONSTITUTION AMENDMENT OR A LEGISLATORS' COUP?
By
"If we do not maintain Justice, Justice will not maintain us."
- Francis Bacon
Except those who want to delude themselves, it is common knowledge that majority of Nigerians do not accept the legitimacy of the present constitution. They see it as a military document with overbearing military peculiarities. It remains an imposition, which was undemocratically contrived by an un-elected military junta that was itself devoid of any juridical nexus with the People, nor possessed any legitimate political or moral authority to determine a credible normative paradigm for the governance of Nigeria. So, it is no longer a matter of academic debate whether or not the present constitution meets the conceptual criteria of political legitimacy that is deserving of popular respect and obedience. In fact, the people are saying, loud and clear, to it: "non est factum" or "not our deed!"
What we presently operate in the nature of a ‘constitution’ is fundamentally deficient as far as the textual architecture is concerned and it is also conceptually out of synch with the needs of the nation as far as it is not the genuine will of the people. It does not address the acute problems of nation-building, true federalism, inter-governmental harmony, sectarian and ethnic intolerance, public accountability and probity in governance, the democratic empowerment of the populace and the material well being of the nation. Little wonder then that, rather than establish a basis for national cohesion and progress, the experience so far since its inauguration in May 1999 has been anything but peaceful, much less, progressive, in spite of the manifest exuberance of the operators. It is therefore a proposition too plain to be contested that in the interest of a stable, cohesive and vibrant nation, Nigeria would have to settle down soon and construct, for the purpose of her peaceful existence, a new and credible document that would in all material particular approximate to the desire of the people in such a way that would truly animate the Preamble to the constitution which speaks of ‘the People’.
Towards this end, there have been strident calls across the entire political spectrum of the nation for a Sovereign National Conference or a truly Constituent body (like what we had in 1978 but this time not subject to any higher veto) that is properly vested with a truly representative capacity which would then openly and freely deliberate on the immediate and future needs of the country and, then, in the light of their findings, proceed to fashion out a document that would correctly reflect the wishes and aspirations of the various peoples of Nigeria. That is the only way that the country can hope to break out of the vicious circle of defective constitutions and, predictably, unstable social order which have plagued her for so long and have unduly retarded growth and stability that are desperately needed in a modern polity.
Typical of beneficiaries of defective constitutional situations, the few privileged military-created ‘first-comers’ politicians currently on the scene have been creating unnecessary obstacles to the demand for the promulgation of a new social order which is created in accordance with the hallowed principles of political legitimacy and moral credibility in constitutional craftsmanship. In unison, members of the legislative and executive departments have been dismissive about this popular call, claiming that there is no compelling necessity for the convocation of a truly legitimate constitutional-making apparatus for the nation because, by their dubious election, they are now the only appropriate agency to effect any changes to the constitution.
The pitfalls in this opportunistic resistance to the demands of the people are: a) a constitution is not just an ordinary law that depends on regular legislative process to bring it into life. Rather, it is, in all material respects, the WILL of the people and it is only the People in their corporate capacity, not their stewards, that can have the final say on such a matter; b) the issue here is not about amending a document that has already pass the muster of legitimacy but one with a dubious ancestry. What the people are saying is that this constitution is not the product of their will and therefore fall short of the essential requirements of a truly binding covenant and they have demonstrated this lack of faith in it by many overt acts of anarchy, civil disobedience, widespread tension and general disbelief in government as well as several other covert acts of social nonconformity as the nation could not be said to have enjoyed any of the usual tranquility a society with a binding constitution should normally enjoy so far; c) the leadership mistakes the bounded document containing the rules with the Constitution itself which, for all intents and purposes, is actually a body of commonly agreed principles upon which the management of the society is based, whether written or not. The written text is only the evidence of this agreement and, so far, there is no such agreed set of principles in Nigeria about what we want as a people as everything about the nation is still being debated and disputed at every turn with the result that so little governing is taking place and there is no discernible path that one can safely call the ‘Nigerian way’ as we may speak of other well organised societies. .
So, what the nation needs to do with the present constitution is not just to tinker with it or amendment it or superficially alter its text or semantically modify its contents, but a wholesale jettisoning of the entire defective edifice in exchange for another one that would genuinely command the respect and obedience of the citizenry to the extent that it is truly their own. The only reason why people treat their constitutions with utmost respect is because it is the only law that they made unto themselves and to disregard it is to dishonour themselves. Simple. There is no amount of modification to a house, whose entire foundation is fatally defective and is indeed broken, that would save it from collapse. Simply adding more cumbersome provisions to an already discredited document would only make it more vulnerable and susceptible for wholesale abandonment.
Therefore, the current exercise by the National Assembly to amend the constitution is bound to fail because it is impossible to use defective building materials to construct any edifice and expect it to endure. It would be gross megalomania for them, with the huge burden of irresponsibility on their shoulders coupled with their premature parting of ways with the yearnings and the aspirations of the electorate, a behaviour that unfortunately turned them into a gigantic Lame Duck legislature that should by now be counting its time, to be talking of amendment. It is true that Section 9 of the current constitution gives them a part of that power but underlying that grant of power, is an expectation of credibility and legitimacy, two basic qualities that they lack badly today.
Let us for the purpose of argument concede that the proposed amendments are within their legislative prerogative and that they are also possible. The first thing that strikes any observer is the overwhelming self-interest that pervades the whole exercise, so much so, that if they were to be allowed to pass, it would ultimately translate into something more like a legislative coup than a constitutional amendment.
First, they have forgotten that Nigerians for now have more problems with the legislature than with the other departments of state. Let us take the case of the single term of the President as an example. If the President were to serve for only five years and no more, how many times would legislators be returned to office? It is selfish and completely self-serving to be discussing the term of office of the presidency, a co-ordinate political counterpart in government, without any mention of how long shall lawmakers be saddled on the electorate. A more responsible, a more patriotic, amendment would definitely say something about that, and to be taken as serious, make their own term shorter than that of the Executive.
It is should be asked of our goody goody legislators, in view of the poor performances that we have seen from their end so far, whether the nation really needs full-time legislators? The correct answer to this question is NO. We do not need full-time lawmakers who would become nothing but an avoidable drain on the nation’s meagre resources. After all, we have experienced military governments in this country, with varying degrees of performance, without a crowd of legislators in toll. A truly Nigerian constitution would have to address this very important question because, given the reality of Nigeria, we do not need so many professional politicians at Abuja. It makes democracy unnecessarily burdensome. All over the world, the vogue now is a determined movement towards smaller and smarter governments and not the all-comers’ type we have right now that is only a huge drainpipe for the little resources available; quality, instead of quantity. A legitimate amendment must, therefore, also see to it that the motley agbada crowd in Abuja is trimmed to an affordable size. Instead, they are proposing an outrageous amendment (section 76 (b)) that would virtually turn legislators into constitutional princes and princess at Abuja, as they would now be impossible to recall even if they eventually become personal and institutional disasters to their people. How self-centred could a people be?
More importantly, there is no need for the legislators to serve longer than three years at a time for the House of Representatives and four years at a time for the Senators before going back to their constituencies for the renewal of their mandates and, on no account must any of them be returned for more than three times on the aggregate. We should democratise the nation’s political process by avoiding any form of undue power monopoly anywhere. In terms of numbers, Nigeria can make do with just 73 senators (two per state and one for Abuja) and about 250 members for the House of Representatives, if we are indeed serious, because at the moment we do not have up to half those figures in attendance, any day, at the National Assembly unless there is a mischief in the offing. It is wrong for the legislators to be wasting their time trying to remove the mote in the eyes of others without lifting the huge log resting sorely on theirs because we are not hearing much about how to improve on the quality of the representation of the National Assembly; not much on how best the nation can get back its huge investment on its members.
The best example of the selfish and corrupt motives for the so-called amendments is in the proposed section 88(4) to the effect that "Any amount standing to the credit of the National Assembly in the Consolidated Fund of the Federation shall be paid IMMEDIATELY and DIRECTLY to the National Assembly". (Emphasis mine). The financial implication of this amendment is that if, for example, the budget for the National Assembly for the fiscal year is 10 billion Naira, at the commencement of the financial year, say in January, the government must pay that amount immediately and directly into the coffers of the National Assembly. Supposing that at that period of the year the government has only gathered 15 billion Naira into the Fund? The logical implication of such a super-priority accounting process is that after paying the 10 billion into the account of the National Assembly, the government would be left with 5 billion Naira to take care of the rest of the needs of the nation which include the provisions of social services, payment for the defence of the nation, police, the civil service and a host of the other services! How greedy could a people be! If that were to be possible, then the legislature in the name of constitutional amendment would have held the entire nation financially to ransom. Whither your patriotism, O ye "distinguished" and "honourable" parliamentarians?
The responsibility for disbursing funds to meet the exigency of governance is that of the Executive which must take into account the competing demands for money across the entire budgetary spectrum of the nation. But what our "honourables" are proposing would mean that the nation would be paying for their sinecurism and hedonism at Abuja even if there were nothing left for the rest of Nigeria. They have conveniently forgotten that the Judiciary is also a part of the government of the federation and that it also needs "direct" and "immediate" financial gratification or that the teachers and other workers would need to be paid their due wages during the same period. If indeed, amendments were what the nation needed to effect on the constitution right now, this single proposal is enough to morally vitiate the whole process.
But Nigerians need a new constitution which they can call their own and be proud of. Constitutionalism will never become a part of our heritage as long we continue to have documents, which, because of their fundamental flaws would never see the light of day. Such a constitution must address the mirage of problems confronting the people including poverty, disease and ignorance as well as the nation’s institutional problems of corruption, intolerance and general sense of instability. In order words, such a constitution must deepen our democracy and guarantee the welfare of the people and not the present tinkering that ministers only to the selfish desires of those presently at the helms. From Clifford Constitution in 1922 till date, the nation has never been privileged to have a constitution that it can truly call it’s own and able to properly append the binding attestation: "We the People". And for that simple reason, there have been too many constitutions that did not fit the people and were cast off before long. The tragedy is that this current exercise, in spite of the huge costs, already has within its gene clear signs indicating failure.
It would be tragic if by design or default we are made to replace military dictatorship with legislative tyranny in the guise of constitutional amendment. This is therefore a wake up call for the civil society movement and pro-democracy groups in Nigeria to promptly pick up their tools and go back to the trenches in order to resist the pending wholesale reversal of all the little gains that they recorded a few years back by legislators who have no genuine stake in the evolution of a truly democratic society.
Nov 2002