MILITARY POLITICS AND CONSTITUTIONAL DISCOURSE

By

E. IKE UDOGU

Introduction

 .....Liberalization encompasses more than just a "partial opening;" it is both an expansion of individualizational power with which to displace the predatory bloc. Fearing this outcome, predatory rulers always seek to contain and guide the process of liberalization in order to minimize its scope and its impact...[thus], they seek to revamp and consolidate the old system of "constitution without constitutionalism" in which civil society is a zone of limited pluralism functioning as their private estate.1 

Robert Fatton, Jr. 

 

It has become the norm, whenever the Nigerian military acceded to power, to contend that one of the root causes of political instability in the country was the constitution. Therefore, between 1976-1979, 1987-1989, and 1994-1995, the various military regimes summoned the political and civilian elites (through elections and appointments) to write constitutions that were intended to resolve the political, economic, religious and social contradictions inherent in the Nigerian polity. But the real issue in the republic's politics is not the constitution per se; it is the unwillingness of the political and military actors to respect and operate within the context and framework of this legal document. What Nigerians have had, therefore, was "constitution without constutionalism." 

For example, General Yakubu Gowon (who was in power from 1966-75), declared on October 1, 1970 that sequentially his transition programme would include the following: 1. preparation and adoption of a new constitution; 2. organization of genuine national political parties; and 3. organization of elections of popularly elected governments in the states and at the center.2 Such tactical or strategic declarations, usually made to mollify the uneasiness of the ambitious political class and certain elements within the military, tend to prolong the administrative life of the military regimes. Moreover, the "marriage" between the military and some prominent members of the political class in the governance of the country represents an obstacle to military disengagement and democratization in Nigeria. This paper investigates, in brief, the political and constitutional developments during the military regimes. In particular, it examines the debate over the 1994 constitutional conference, and its outcome, as the country marches toward the Fourth Republic. 

It is a given that the cohabitation between the military and civilians, in national governance, tends to weaken the power of the civilians. This situation is exacerbated by the actions of some of the deposed political actors who go "cap in hand" jockeying for plump posts in, and contracts from, the military administrations that ousted them from office. Having comprehended the weakness of the political class, the military assumes that it is indispensable in the political governance of the republic. In addition, the continued social contacts and interactions between the military and the political class create a problem of "familiarity complex" that sometimes makes it difficult for both groups to perform effectively in the best interests of the republic. Moreover, this complexity is furthered by the fact that today the military cum civilian administrators belong to the same "ethnic unions, professional associations, old school boys' network and associations, religious bodies and charitable associations...."3 Indeed, the intricacy of such fraternization in Nigerian society was summed up in President Babangida's description of the military and civil society's peculiar relationship: 

Having been so entrenched in the governing process of Nigeria, and with the co-optation of some members of the political elite to provide legitimacy, why does the military seek to disengage? Although a number of arguments have been posited for military disengagement,5 the issue in Nigeria's case is confounding. Witness, for example, General Gowon's and Babangida's protracted transition schemes.6 This essay, however, is not intended to discuss this important step in Nigeria's democratization process. Rather, it is designed to examine, critically, the constitutional debate and its outcome following General Abacha's coup and accession to power in the wake of the nullification of the June 12, 1993 presidential election. 

The June 12 Controversy and its Aftermath

The June 12, 1993, presidential election fell within the framework of President Ibrahim Babangida's piecemeal transition to civilian rule program initiated in 1986. The first attempt within the two parties, the Social Democratic Party (SDP) and the National Republican Convention (NRC), was the presidential primary elections that were to have taken place in September 1992. Because the intra-party competition to produce a presidential candidate for both parties was fraught with fraud and irregularities the elections were canceled by the Babangida administration.7 

A second endeavor was planned for June 12, 1993. This time, the administration through the National Electoral Commission (NEC) concocted a meticulous plan which allowed both parties to pursue the process of electing their presidential candidates at the grassroots level. For example, each state produced two presidential candidates, one each from both parties. These presidential candidates then met at two national conventions (SDP and NRC) to select their presidential candidates.8 The "success" of this modality led to the June 12 presidential elections. 

The period from June 12 to November 17, 1993 may be an important political milestone in the annals of Nigerian democratic development. This is so because of the June 23 "coup" in which President Babangida abrogated the presidential election of June 12 between Moshood Abiola of the SDP and Bashir Tofa of the NRC. The annulment triggered anti-government activities by various pro-democracy movements, trade unions and other organizations determined to revive the democratic process in the country. It was the action of these pressure groups that led to the decision by the Babangida administration to appoint an Interim National Government (ING) headed by Ernest Shonekan. This fiduciary government was to work toward political stability and to "midwife" the republic into "genuine" democracy. 

It was clear at this juncture that the damage had already been done, and that the pro-democracy movements were not going to settle for anything less than the restoration of the democratic superstructure that Babangida brought down with arrogance. The strategy of the movements was to suffocate the ING through strikes, media and other devices.9 The outcome was the delegitimization of the ING and the final dislocation of the administration. This was made possible because of the political climate under which the Shonekan administration was inaugurated, a condition that was exacerbated by those who believed that Abiola of the SDP won the June 12, presidential election and must, therefore, be sworn in as president. 

The political turmoil and commotion during the period of the ING led to an increased economic instability and political malaise since it was clear that the ING was not in charge. Given the political and economic uneasiness in the country, the political class displayed its atavistic and self-serving politics reminiscent of the previous republics. For example, "governors were openly threatening and intimidating the Interim Government with secession; petty crimes like stealing and gross indiscipline were being perpetrated with impunity while state governments were being run like personal companies; the National Assembly, instead of making laws for the country, became a spot for trade by barter and the law courts became polarized along political and geographical lines."10 It was in view of such perplexing developments that after 82 days, the ING died on November 17, 1993, following a military coup by General San Abacha.11 

In order to consolidate his grip on power, Abacha "disbanded all the democratic institutions... [including] the local governments, State governors, State Houses of Assembly, both Houses of the National Assembly, the two political parties [SDP and NRC] and the National Electoral Commission."12 In his first broadcast after the coup, he affirmed that he would call for a constitutional conference and reorganize the military, police, customs, banks and institutions of higher learning. These objectives were to be accomplished by the newly constituted Provisional Ruling Council (PRC) -- the highest legislative body in the country.13 

Central to the administration's policy as it relates to this essay was the establishment of a constitutional conference intended to work out the modality for the survival of the republic as an indissoluble entity. Indeed, it is true that "a great army can capture an enemy city, but to rule it requires a great idea."14 One such idea concocted by the PRC for governing this sophisticated, complex and problematic polity was a National Constitutional Conference. 

Constitutional Design: A Theoretical Analysis

Operationally, a constitution may be defined as "a state's organic or fundamental law, which prescribes the basic organs of government and their operations, the distribution and use of power, and the relationship between the individual and the state... In all cases, the function of constitutions is to establish the norms by which the system operates."15 

It is true that a constitution may not depict the complete reality of any polity, but it does provide a springboard from which to comprehend the fundamental reality of the system. Because individuals who write constitutions are humans, often representing their particular interests or those of a group, these documents are not always flawless. 

Indeed, Donald S. Lutz contends: 

As noted earlier, what prevails in Nigeria and in fact many African countries today is constitution without constitutionalism. Carl Friedrich defined constitutionalism as: 

Germane to the above definition and analysis, Paul Sigmund asserts the idea that "every constitution is continually changing and that the making of a constitution is a continuous process -- but that an effective constitutionalism is institutionalized; it does prescribe certain regularized limits on conduct; and it has an effect on behavior, even if its component elements are undergoing substantial alteration over time."18 If the idea of constitutionalism is to be efficacious, the need for an effective government or at least the pursuit of good governance is imperative in any political system.19 In the Nigerian situation, the military has produced their constitutions of which two (in 1979 and 1989) are hardly ever tested, let alone institutionalised. Even the 1979 constitution that was under operation from 1979 to 1983, and considered by many to be relatively adequate, lacked the longevity to be institutionalized within and among the ruling class. And, this is not to mention the problematic endeavor of educating the populace on the merits of the constitution so that they, too, could imbibe its central tenets and thus help promote the instutionalism of, or belief in, the norms of the document. In short, the process of constitutionalism in Nigeria is very tough, in part because of the continual intervention in the political process by some members of the Armed Forces to promote their interests. This may be done by subverting the process of constitutionalism and encouraging the writing of "faulty" constitutions that are not only intended to keep the politicians busy and distracted, but also make it possible for the military to return to power. This problem is furthered and complicated by the fact that a constitution in and of itself cannot resolve the antinomies inherent in a political system. This is so because although political actors tend to agree on the need for a constitution and claim to support it, their interpretations of the tenets of the document and other political issues related to it tend to vary because of conflicting individual or group interests. This is especially so in the struggle for power necessary for the authoritative allocation of values. 

Given Nigeria's complex situation, therefore, how could the political class reach and agreement on fundamental issues facing the country? A simple answer might be to stress the need for accommodation, which could further stability in a system with diverse and contradictory interests. But the question is how the republic might design a paradigm necessary to induce the political actors to compromise on issues vital to the state, especially when their parochial interests are at stake? Neal Riemer and Douglas W. Simon have hypothesized that "successful patterns for furthering cooperation, advancing accommodation, and handling conflicts in politics require agreement on certain constitutional fundamentals..."20 They contend, emphatically, that without a certain amount of consensus and trust, orderly procedures for discussion and decision would be difficult. Thus, "agreement on fundamentals entails accepted rules of the constitutional game on such dimensions as voting; freedom of speech, press, and assembly; majority decision; due process of law that enables political actors to [tame] the struggle for power."21 Additionally, constitutional framework provides the basic agreement without which politics cannot proceed as civilizing process. In fact, they conclude, it provides the basic rules for the political game.22 

 The Military and Constitutional Engineering in Nigeria

Historically, the country has had numerous constitutions since the creation of modern Nigeria in 1914. For example, there were the pre-independence constitutions of Governors Hugh Clifford of 1922/3, Arthur Richards of 1946, John Macpherson of 1951/1954.23 There was also the post-independence constitution of 1963. These constitutions, inter alia, tackled such major issues as the involvement of Nigerians in the process of governance, federalism, independence and institutional structures. 

Lutz has noted that a constitution may change by way of (1) a formal amendment process, (2) periodic replacement of the entire document, (3) judicial interpretation, and (4) legislative revision.24 Indeed, in the Nigeria case, it is the second dimension that prevails, even when strong arguments have been made in support of a formal amendment to the constitution, of necessity, to save money and time, and to prevent the national malaise often associated with national constitutional conferences. 

Between 1975 and 1996, Nigerians have written three constitutions. This situation implies that the problem of political governance lies in the republic's constitutional designs. Many observers may take issue with this thesis. In fact, many argue that the military's invitations to attend constitutional convocations are mainly ploys to buy time and assuage the political class while the military attempts to prolong its life and authority over the republic. The only probable exception to this "artifice," one might contend, was the Muhammed/Obasanjo administration. 

General Muhammed's coup occurred on July 29, 1975, in the wake of General Gowon's determination to renege on his earlier plan to relinquish power in 1976.25 In October 1975, Muhammed appointed a special committee, the Constitutional Drafting Committee, made up of entrepreneurs, university professors, prominent civil servants and others, to write a constitution that would be submitted to a Constituent Assembly for ratification. He specifically suggested to the committee, headed by Justice Rotimi Williams, that he preferred a strong executive on the model of the United States.26 

In 1977, a Constituent Assembly made up of both elected and appointed officials scrutinized and approved a draft constitution. Following the ratification by the Supreme Military Council (SMC), the constitution was put into effect in 1979. Three major themes intended to further unity in the Nigerian state in the 1979 constitution were these: 1. the introduction of a variable-sum-game politics; 2. the issue of the Federal character which was aimed at involving as many geo-ethnic cleavages in the process of national governance and employment to further legitimacy; and 3. the requirement that a presidential candidate must win election in at least two-thirds of the total number of states. This strategy was intended to boost national support for a chosen candidate. 

The pre-military constitution of 1963 was based on the zero-sum-game politics. In this model designed after the Westminster model, the losing party was denied not only the prestige accorded the party in government, but also access to the largesse useful for the dispensation of "goodies" to constituency members and lubrication of the party's political machine. Following the 1979 constitution, however, Nigeria opted for a system of separation of powers between the Executive, Legislative and Judicial branches of government in attempts to create legislative balances. 

For example, in part 11, Article 4 (1-2) of the 1979 constitution the function of the Legislative branch was outlined thus: "The Legislative powers of the Federal Republic of Nigerian shall be versed in the National Assembly for the federation which shall be versed in the National assembly for the Federation which shall consist of a Senate and a House of Representatives... The National Assembly shall have power of the Federation or any part thereof..."27 

The powers of the executive branch are noted in Section 5 (1 a and b), which states that subject to the provisions of this constitution, the executive power of the Federation: 

The second theme was the issue of the Federal character and elective and appointed positions - in particular, the cabinet and administrative positions at the federal level. Indeed, the constitution attempted to preclude the monopoly on power by one or a few states, ethnic group or region at the federal center, and by one or more ethnic groups in the states and local government areas. Accordingly, Art. 14(3) of the 1979 constitution states: 

The 1989 Constitution

The Babangida administration, which superseded the Buhari regime established in 1986, a timetable for the rebirth of democratic government in Nigeria. One of the regime's programmes called for the writing of a new constitution that would reflect the political reality in the country. Structurally, the constitution proclaimed in May 1989 by decree No. 12 was somewhat similar to the 1979 constitution. For example, it called for a Federal system and provided for a president and two legislative houses.30 

This constitution, however, was never implemented because of, among other factors, General San Abacha's military coup of November 1993. 

The 1994 Constitution Conference: The Conflictual Debate

From the onset, the notion of a constitutional conference generated polemic debates concerning its validity, desirability and intent. The concern issued from the fact that the country has had two constitutions (1979 and 1989) that were never fully tested. The question, then, was "Why the 1994 convocation?" Usman Bugaje notes: "It is largely this dubiety, hypocrisy and greed in the governance of Nigeria that has given so much impetus to the call for a national conference. The frustration and apathy that its misrule engendered, increase with every passing day. So much deception, so much corruption, so much hypocrisy, has been introduced into governance that no one any longer believes the government. This total lack of trust, lack of confidence and lack of faith has caused, and rightly so, a great deal of agony, anger and panic."31 Mokwugo Okoye writes: "... perhaps the presumption here is that all those who would want to be delegates to the conference are experts... Or that our main problem in Nigeria is purely constitutional to which we have been `turned on' over the years --- first, in 1949-50 and 1954-60 under the auspices of the British colonialist, then after independence in 1963, 1976-78, and 1987-89..."32 Olusegun Obasanjo affirmed in regard to the Abacha National Constitution Conference. 

The preceding conjectures are presented to illustrate the level of frustration and pessimism expressed toward the Abach constitutional conference. To be sure, other groups such as ethnic collectivities or nationalities vented their concerns regarding a constitutional conference and its legitimacy. Such ethnic groups as the Ijaw,34 Tivs,35 Igbos,36 Yorubas,37 Edos38 and the Hausa-Fulanis presented their manifestos regarding the constitutional conference. The paradox was that while on the one hand, their declarations tended to threaten the political unity of the republic, on the other hand, they argued that the corporate existence of the country was possible only if their group interests were met and satisfied. For instance, the Edo ethnic group stated emphatically during the conference that: 

Such a stance by an ethnic group tends to render the governance of the Nigerian polity problematical. Indeed, some ethnic groups called for the boycott of the elections to the National Constitutional Conference; this was especially the case with respect to the Ijaw ethnic nationality. This minority ethnic group whose area produces a substantial amount of the republic's soil revenue, and is yet vastly underdeveloped, was frustrated because of its perceived inability and lack of clout to influence the possible outcome of the conference in its favour. 

Moreover, an amalgam of pro-democracy groups wondered about the frame-work that the conference was going to apply. For example, the position of the pro-democracy movement was for the formation of a Sovereign National Constitutional Conference (SNCC) with enough power to decide whether the balkanization of the country was desirable in light of the country's instability. Indeed, Michael Ajasin, one of the spokespersons for the National Democratic Coalition (NADECO), a pro-democracy organisation, stated during the heated debate concerning the conference: "This is to inform the public that NADECO insists on a Sovereign National Constitutional Conference whose decision will be final and binding."40 The contentious issue of Nigeria's political unity, which is sometimes referred to as the National Question, has been a major topic of discourse among members of the informed public. The position of the Abach administration was that the notion of a SNCC was irrelevant. besides, the outcome of such a conference could lead to the fragmentation of the republic. In fact, such a move could contravene the rationale for which the regime seized power. So, he insisted in his speech of November 18, 1993: A constitutional conference with full constitutional power will be established to determine the future constitutional structure of Nigeria."41 Also, in his budget speech on January 10, 1994, he reaffirmed that his administration was determined to see that the outcome of the constitutional conference met the collective desire for a more united Nigeria.42 
 

Elections to the National Constitutional Conference

The mechanics of the electoral process were problematic, at the very least, to many of those interested in the process. The election itself was scheduled for May 23, 1994, and the delegates elected were to convene on June 27 for deliberations. The process was complicated by an appeal made by the National Democratic Coalition (NADECO) and other prodemocracy movements for the boycott of the elections because it was a "farce." Whereas electorates in the North and South-east may have participated enthusiastically in the election of delegates, the same was not the case in the South-west.43 In fact, it was alleged that about 300,000 eligible voters cast their votes nation-wide.44 Arguably, the low turn out may have been due to the political malaise brought about by the nullification of the June 12 presidential election and the military coup of General Sani Abacha. In fact, bad memories of the unsuccessful Babangida's transition programme were still fresh in the political psyche of the electorates. The Nigerian Guardian stated that as a result of this development the "only beneficiaries of the outcome of the conference will be the narrow, coalescent elite interests determined to sustain a Nigerian status quo which the vast majority of Nigerians find intolerable."45 Also, theConstitutional Conference Decree No. 3 of 1994 provided the government with the power to appoint the chairman and deputy chairman, both of whom had voting power. In Article 11(3), the chairman could cast a vote if there were a tie. And Article 12(1) specified that "the conference cannot have a quorum without the chairman or deputy chairman even if everyone else is present."46 Article 2(b) of the same decree noted that only the Constitutional Conference shall propose a new constitution to the Provisional Ruling Council (PRC). There was nothing in the decree that suggested that the PRC was obliged to accept the constitution in toto as proposed.47 What this implied was that the PRC could amend it to suit the PRC's interests.. In addition to these perceived shortcomings, critics have contended that the only constitution that would be valid in the republic was one sanctioned by the Nigerian people through a national referendum.48 

The composition of the delegates to the conference was one that troubled some political observers. Although the total number was 396, the government appointed 96. This number represented 24 percent of the total, drawn from every state in the republic.49 Those opposed to the government's position charged that such a framework that permitted the government to appoint that many delegates was intended to manipulate the outcome of the deliberations. In fact, NADECO declared: 

During the course of the political commotion, the government continued to appeal for reconciliation with the various groups that had called for a boycott of the constitutional conference. In particular, the government extended its olive branch to NADECO (which received support from human rights groups, student unions and some eminent Nigerians). The regime also appealed to local chiefs in the south-west who had expressed their desire to call for a boycott of the elections to the national constitutional conference in their localities.51 It was in such a crisis milieu that the administration, under the auspices of the National Constitutional Election Committee (NCECO) chaired by Bernand Mbab, conducted the May 23, 1994, constitutional elections. Low voter turn out made the outcome contestable.52 To the military regime, however, what was important was that the election took place; the issue of its legitimacy (or lack of it) was insignificant. 

The mandate of the National Constitutional Conference was contained in Decree No. 3 of 1994, which charged participants to pas resolutions and conclusions to form the framework and basis for the governance of Nigeria for the following goals: 

Furthermore, speaking at the inauguration of the Constitutional Conference on June 27, 1994, General Abacha said: 

The agenda for the conference was broad, but sufficient to tackle the fundamental issues that continued to make the republic politically ungovernable. Generally, the agenda examined could be summarized within the following clusters: 1. a united country, federation or confederation; 2. an executive and parliamentary system similar to the system in Franco-phone Africa, and sometimes referred to as the mixed French-system; Afrocacy -- i.e. an indigenous system; 3. the issue of revenue allocation including options such as derivation, equality of states, population, land mass, terrain and special allocation for ecological damage to oil and mineral producing states; 4. relevance of traditional rulership at the federal, state and local government levels; 5. indiscipline and corruption in public life, corruption in society, ways of affecting accountability, effective ways of eradicating corruption, and enforcement of the Code of Conduct; 6. the population policy and bringing about a population census policy; 7. the issue of party system and the question of whether it should be a zero party, single party, two-party or multi-party system; 8. ethnic nationalities and creation of states, and local governments; 9. examination of the need for a national language, and indigenous lingua-franca, or whether English remains the lingua-franca; 10. the issue of ethnic domination and federal character, a system through which states should set equitable distribution of government jobs; 11. the June 12, imbroglio; 12. the problem of democracy in Nigeria, the supremacy of the will of the people and the sanctity of elections in the federation...55 

The Outcome of the Constitution Conference

The National constitutional conference which was inaugurated on June 27, 1994 completed its difficult task on June 27, 1995. At a special ceremony, attended by a cross-section of Nigerians and members of the diplomatic corp, the draft constitution was presented to General Abacha by the conference's Chairman, Justice Adolphous Karibi-Whyte. 

Some of the novel and contentious decisions made by the conference were those of the "rotation of power between the North and South... multipartyism, multiple vice-presidency, proportional representation of parties in government, establishment of constitutional court and federal character commission as well as constitutional recognition for the principle of derivation in revenue allocation."56 Concomitant with the presentation ceremony, the head of state lifted the ban on party politics. 

Basic to the constitution were three main issues that have been the bane of the previous three republics: the issue of the rotation of power; the question of the federal character; and the problem of revenue allocation formula. The ensuing analyses will center on these provisions. 

First, the institutionalization of a rotational system of the presidency is an acknowledgement that power at the federal level of government was dominated by a few geo-ethnic groups. This reality has been one of the source of political agitation and instability. This was especially the case with respect to those groups who saw themselves as being marginalized because of their minority status in the republic. To this end, the principle of rotational power will be applied according to a special formula. In this regard, General Ahacha declared: 

The issue of rotational presidency, though well intended, is problematical especially in the south with its multitudinous ethnic groups. Indeed, Tam David-West noted: "In the South where will the president come from - Yoruba, Igbo, or the minorities? Even the minorities have sub-groups: is it Edo, Delta, Rivers, Aqua Ibom or Cross River State? So producing a president from the South will be so problematic that it could ground the entire system and besides, the queue will be so long that some areas will not taste of it till the year 3000."58 On the other hand, Anthony A. Akinola viewed the "rotational presidency [scheme] as a master stroke which could end the ethnic origins of political parties by encouraging intra-ethnic competition and, therefore, the emergence of multi-ethnic political parties...."59 

In fact, applauding Abacha's 35th anniversary speech regarding the rotational presidency and power-sharing formula, traditional rulers in Ondo state in South-west Nigeria affirmed that the scheme should start in the south-western zone. This was suggested perhaps to appease the area following the nullification of June 12, 1993, presidential election which was alleged to have been won by Moshood Abiola, from that region.60 

Second, the question of the federal character is one that is intended to bring all Nigerians into the mainstream of Nigeria's economic and political interactions and participation. In short, it is designed to demarginalise the minority ethnic groups in the areas of job and political power. Also, it is aimed at assuaging pressures from the minority groups who have attempted to de-legitimize the state or render it "irrelevant" by withholding their support for the system. Because of the seriousness of this issue in the politics of Nigeria, Abacha approved the formation of a Federal Character Commission. The purpose of the Commission would be to come up with modalities for alleviating the disequilibriums which have marginalised certain areas of the Nigerian polity. To further this process, Abacha noted: 

Third, the problem of revenue allocation is probably the most contentious issue in Nigerian politics. The major breadwinner in Nigeria is crude oil, which generates about 90 percent of the country's revenue. This "black gold" is produced in the south. The area believes that a greater share of the revenue derived from oil should be allocated to the region. Indeed, it was the frustration stemming from the disproportional allocation of revenues in favour of the central government that prompted a southern (Edo) ethnic minority group, in its memorandum to the National Constitutional Conference, to propose the following revenue allocation formula: All on-shore and off-shore wealth generated by a Province shall be shared as follows, Province (50%), Region (30%), and Federal (20%).62 This formula was presented to the Conference in hopes that a new political structure and dispensation reflecting the group's interest would emerge out of the constitutional convocation. 

Additionally, the struggle of some members of the Ogoni minority ethnic group, led by the late human-rights activist Ken Saro-Wiwa, against the Federal government for an adequate remuneration to the ethnic collectivity of the oil wealth derived from Ogoniland is illustrative of the concern and demand for fairness in the allocation of the national revenue.63 

The government's position on this issue is that "a fixed percentage of 13 percent of all revenue, accruing to the Federal Account directly from natural resources, shall be set aside as derivation. This is to compensate communities which suffer from severe ecological degradations a result of the exploitation in their areas."64 Such laws have always been on the books, but are inadequately implemented. 

Generally, it is one thing to write a superb constitution, and quite another to implement the tenets of the document. To impose a constitution on a polity that lacks confidence in its government is problematic. A Constitution in and of itself does not govern a system. Indeed, it is the political class with their diverse and sometimes conflicting interests who do. It is their behaviour toward, and interpretation of, the constitution that could sustain or weaken the political system. 

Little wonder, then that after the regime's review of the draft constitution the Secretary to the Federal government, Aminu Saleh, stated to a group of senior bureaucrats invited to a workshop in Abuja that the constitution was so full of contradictions and ambiguities that it was unacceptable.65 He further noted that the "provisions relating to a multiple vice-presidency, the five-year presidential tenure, revenue sharing ratios and decentralization of education were sufficiently contradictory to make the draft constitution an example of the double-talk of politicians."66 

The position of the government has created a nation against and along geoethnic lines. For instance, such northern leaders as Tanko Yakassai and former president, Shehu Shagari, insisted that the military was free to make changes to the draft constitution because some of the provisions are unworkable and problematical.67 From the south Adolphus Karibi-Whyte, chairman of the ad hoc Constitutional Conference, noted that "decision taken by two-thirds majority of a body technically are regarded as absolute. If the Constitutional Conference is regarded as an assembly of the country, it means that everything in its has been decided by the county."68 In light of this development one is reminded of Samuel Huntington's contention that for political order to be established in any system, "the creation of political institutions involving and reflecting the moral consensus, mutual interest, principle, tradition, myth, purpose, or code of behaviour is a sine qua non."69 

Further, the recommendation of a system of "proportional" representation intended to resolve the problems of the politics of the zero-sum-game is not likely to mitigate political instability, if the military and politicians are unprepared to play by the ruler of the constitutional game.70 The contemporary debate on the validity of certain clauses of the draft constitution by powerful interest groups bears this out. Moreover, the above view is supported by some scholars who argue that the issue of political unsteadiness in Nigeria could be attributed to constitutional impropriety of the governing elite.71 

Conclusion

In sum, therefore, regardless of constitutional tinkering, the very survival of the Fourth Republic may rest on the determination of the ruling class (especially the military and political class) to set aside their parochial interests and concoct an efficacious constitution that is likely to promote constitutonalism and national legitimacy. Perhaps a national referendum on any proposed constitution might help the republic to produce such a document. 

ENDNOTES

Feb 2002