Agitations for new constitution/power devolution: Between celebration of ignorance and coup plotting – Elaigwu Apeh
One of the greatest political activities in Nigeria is to dishonestly heap the blame of all the challenges arising from our shortcomings on the 1999 Constitution as amended. From outright demand of a new constitution fashioned on the 1963 constitution to power devolution or restructuring, the voice and pen are highly strong and unanimous for constitutional review.
The National Democratic Coalition (NADECO) by a statement signed by its General Secretary, Ayo Opadokun, in asking President Buhari to return Nigeria to 1960 and 1963 Constitutions, stated: “In all the circumstances of this matter, NADECO has no alternative that there better be no more elections under the 1999 so-called Federal Constitution, until we return to the negotiated 1960 and 1963 Federal Constitutions to which Nigerians subscribed at independence when we became a Republic” (New Telegram June 21, 2021, page 4).
Afenifere on 29th June, 2021, called on President Buhari to initiate a bill on restructuring and transmit it to the National Assembly for the Legislative process. (Daily Trust, June 30, 2021, page 6). Afenifere insists that unless issues of resource control and restructuring are comprehensively addressed, Nigeria will not surmount her current economic, political and security challenges (New Telegraph, July 1, 2021, page 4).
Arewa Constitutive Forum (ACF) is determined to have consultation with other ethno-regional organizations like Afenifere, Ohanaeze Ndigbo, Pan Niger Delta Forum (PANDEF) and Middle Belt Forum (MBF) on issue of restructuring (The Nation, June 29 2021, front page).
According to Retired Col. Tony Nyiam, let the constitutional amendment continue but the issue is that Nigerians have gone beyond amendment. Nigerians want restructuring and as you would have heard, without restructuring people are now seeking to go their separate ways. The only bridge that can help those who want Nigeria as it is and those who want to separate from Nigeria is to restructure (New Telegraph, June 17, 2021 page 10).
The House of Representatives has passed for second reading a Bill Sponsored by Honurable Onofiole Luke (PDP, Akwa Ibom) to alter the 1999 Constitution to provide for state police and other state government security services to enhance security and preservation of lies and property in the country. This is to remove security matters from the exclusive legislative list to allow state government legislate on security matters as currently being agitated in the various quarters of the country (Nigerian Tribune July 7, 2021, page 29).
The South West Governors and members of the House of Senate and House of Representatives from the South West Zone had a meeting at Transcorp Hilton, Abuja on 6th July, 2021 in order to harmonize their position and present a common front as regards the amendment of the 1999 constitution such as restructuring, state police and fiscal decentralization among others (Nigerian Tribunal, July 7, 2021, page 4).
South West Attorneys General held a meeting at Ado Ekiti, Ekiti State for harmonization of laws and concrete position on constitutional review. The meeting which was attended by all the Attorneys General and Commissioners of Justice, except Oyo State which presently does not have Attorney General, deliberated on five agenda items including the implementation of financial autonomy for the judiciary and legislative, proposals for the amendment of the constitution and harmonization of laws and policies of the South West States of Nigeria.
On the constitutional reforms the Attorneys General discussed proposals for the amendment of the constitution and reaffirmed their commitments to three main areas of constitutional reform. Gender equality and increased participation of woman in public life, fiscal federalism and the need for a holistic review of the Exclusive legislative list in the 1999 constitution with emphasis on the need to devolve more legislative items to states and the establishment of state police service to serve as a territorial police force to complement the Nigeria Police in law enforcement in each of the South West States. (Nigerian Tribune, July 19, 2021, page 30).
However, when President Buhari declared through Executive Secretary of Revenue Mobilization Allocation and Fiscal Commission, Alhaji Mohammed Shehu, that advocate of restructuring and secession were “naïve and mischievously dangerous” and he had no time for any “obscure conference,” an intensive controversy was triggered.
South South Governors, the Christian Association of Nigeria (CAN) Afenifere, Middle Belt Forum and Pan Niger Delta Forum (PANDEF) disagreed with President Buhari over his comments that there is nothing to restructure in Nigeria (Vanguard, June 21, 2021, page 5).
The Chairman of South South Governors Forum and Governor of Delta State, Dr. Ifeanyi Okowa, who spoke through his Chief Press Secretary, Mr. Olisa Ifeajika stated: “I don’t know who is not informed here. Restructuring is not about dividing the country into regions as it were. Restructuring is a lot of things, true federalism. We can’t have a federation with the way things are; and with so much powers at the centre and the centre does less than even local government areas. That is why people are calling for restructuring to whittle down the power at the centre and give more powers to the states because they do more work. Restructuring includes security. If the federal security apparatus cannot cope with the security challenges and you allow states to have their police outfits, up to community policing, it is also restructuring.
Restructuring includes good allocation formula from the federation account so that there will be equity. Maybe they are just thinking that restructuring means dividing the country, creating states. No, that is not all. In a federation, the federating states should have an entitlement. You are producing oil, oil loyalty should go to you as much as it is going to the centre; that is what the people are talking about.
Restructuring is all-encompassing. The federal government has not even done one aspect of it. The 17 governors of the Southern States have come together and talked about restructuring, they are not joking (Vanguard, June 21, 2021, page 5).
Olatunji Dare, in expressing his disgust for the position taken by President Buhari, in his writing, “The Imperative of Restructuring” (The Nation, June 29, 2021, back page) stated: “The choice before Nigeria is when it will restructure, not if. Unless it restructures, it will go the way of former Yugoslavia. Every day that passes without an advance toward restructuring can only hasten that eventuality.” Lanre Banjo stated that Buhari once campaigned for the Presidency on restructuring how could he described those advocating for restructuring ignorant (Nigerian Tribune, June 22, 2021, page 22).
It is very important to note that eminent Lawyers are united on the issue of new constitution and restructuring/devolution of powers. Mike Ozekhome, SAN, in his writing, “President Buhari’s faulty policy of non-restructuring,” (Sunday Telegraph, July 4, 2021 back page) states: “Help me remind President Buhari that many countries of the World enthroned a new constitutional order by enacting brand new constitution after referenda of the people. Examples are Egypt (2012), South Africa (1999), Morocco (2011) Kenya (2010), Eritrea (1994) Iraq (1979), Iran (1979), Bangladesh (1991), Tunisia (2014) and USA (1787).”
Aare Afe Babalola SAN, in his writing, “The National Assembly can enact a new Constitution” (Vanguard, June 16, 2021 page 20) is apposite: “I reiterate that the 1999 constitution deserves no amendment but a complete overhaul and the National Assembly is empowered to effect this. Professor Itse Sagay, a foremost constitutional lawyer and Chairman of the Presidential Advising Committee Against Corruption (PACAC) recently reiterated his advocacy for the scrapping of the 1999 Constitution and a return to the 1963 Constitution, which, according to him, had catered for most of the agitations today.”
Joe Gadzama, SAN, in his writing, “Restructuring: Guide to Nigeria of our Dream,” (Vanguard July 15, 2021, page 26) endorses restructuring and enumerated the key areas deserving attention, namely: (1) the preamble; (2) Local Government Administration and Autonomy; (3) Federal Structure and Power Devolution; (4) Nigeria Police and Nigeria Security Architecture; (5) Fiscal Federalism and Revenue Allocation; and (6) Residency and Indigene debate.”
Senator Ajibola Basiru (APC, Osun Central), Spokesperson of the Senate and an eminent Lawyer, spoke of the approach of the National Assembly to constitutional review as follows: “The approach of the constitutional review committee of the National Assembly is: Throw open all issues including structure of governance. Even if you are referring to 1963 Constitution, what are the existing provision of our constitution that is not in line with 1963 constitution, then you name the sections we will delete or replace, if it’s about devolution of power, if it is the exclusive list you want to take to residual or to concurrent, you can so do so, it’s just that they just want to criticize without even engaging and interrogating the existing system.” (Vanguard June 17, 2021, page 43). On his personal consideration, Senator Ajibola Basiru stated: “I believe that there is an advantage in the size and diversity of Nigeria, particularly for the black people, so I am for the unity of the country. But of course, I believe that we must get a system that will lead to proper utilization of diversification in term of devolution of power and fiscal federalism.”
The nature of constitutional review being carried out by the National Assembly is aimed at new constitution for Nigeria. The Speaker of the House of Representatives, Rt. Hon. Femi Gbajabiamila in a speech to mark the end of the legislative year, as the House of proceeds on its annual vacation after plenary stated: “As I have said before, this constitution amendment process is unlike those that came before. This time, we seek nothing less than a wholescale review of the constitution, with the express intention of crafting a document that reflects the democratic ideal, and at the same time resolves those fundamental conflicts of our nationhood that hinder our march to progress. The current Constitution of our Federal Republic reflects our past. We need a constitution that speaks to our present and makes a better future possible. And it’s our commitment in this 9th House of Representatives to deliver such a constitution” (Vanguard, July 16, 2021, page 7).
Senate President, Dr. Ahmed Lawan, has said that the National Assembly would pass the amendment to the 1999 Constitution. Lawal, in his 2021 Sallah message said the Federal Lawmakers would finish work on the constitutional amendment, transit the outcome to the State Houses of Assembly for their consideration before considering the 2020 budget. According the Senate President, “We are confident that the new constitution that will emerge from the exercise will substantially address all the areas of genuine concern to patriotic Nigerians” (Daily Trust, July 19, 2021, page 34).
It is quite clear that both the advocates and National Assembly are determined not only to restructure but to produce a new constitution. The pertinent question is: can the National Assembly undertake a fundamental alteration of the constitution in form of restructuring and new constitution? This leads to jurisprudential consideration of the Basic Structure Doctrine in Constitutional Law.
Basic Structure Doctrine in Constitutional Law
In Cocacola (Nig) Ltd V. Akinsanyo (2017)7 NWLR (pt 1593) 74 at 118 (paragraphs D – F), the Supreme Court (per Eko, JSC) stated:
“The basic structure doctrine in constitutional law postulates that: parliament constituent is subject to inherent limitations, and that parliament cannot use its amending powers to damage, emasculate, destroy, abrogate, or alter the BASIC STRUCTURE framework of the Constitution which includes:
Supremacy of the constitution;
Republican and democratic form of government;
Secular character of constitution;
Separation of powers between legislative executive and judiciary;
Federal Character of Constitution (which includes devolution of powers); and
Sovereignty.”
The Supreme Court went on to cite application of the basic structure doctrine by the Supreme Court of India and held that the basic structure postulate was the underpin of its decision in Lakanmi V. A.G. Western Nigeria (1971)1 UILR 201 striking down the provision of Section 2(1) of Decree No 45 of 1968 for being a legislative judgment. The Lakanmi case, though annulled by another Decree, is a representation of the application in Nigeria of the “basic structure” postulate. (pages 118-119 of the Report).
The basic structure doctrine, in a nutshell, is a legal doctrine according to which even in the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity. The doctrine migrated from Germany to India, where it was accepted by the Supreme Court (see e.g. Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461), and from there migrated to other countries, in one name or another (see, for instance, the Slovak Constitutional Court’s ‘material core’ doctrine).
The basic theoretical argument for this idea is that the constitutional amendment power is not unlimited. The amendment power is a delegated legal competence which acts as trustee of the people and therefore is limited both explicitly and implicitly. Firstly, it is limited by those explicit limitations / eternity clauses stipulated in the constitution. Secondly, the body which holds the constitutional amendment power in trust cannot use it to destroy the constitution from which the body’s authority derives in the first place. The amendment power is the internal method that the constitution provides for its self-preservation. By destroying the constitution, the delegated amending power thus undermines its own raison d’être. Amending the constitution in a way that would destroy the old and create a new constitution would be an action ultra vires. Also, since every constitution consists of a set of basic principles and features, which determine the totality of the constitutional order and the “spirit of the constitution” and its identity, the constitutional amendment power cannot be used to destroy those basic principles. The alteration of the constitution’s core would result in the collapse of the entire constitution and its replacement by another. This decision, however, is not left for the delegated organs, but for the people’s primary constituent power and is ought to be taken via proper channels of higher-level democratic participation and deliberations. See, Benson Tusasirwe, “The Basic Structure Doctrine and Constitutional Restraint:Take-away from the “Age Limit Decision,” Keynote address at the Dialogue on the Independence of the Judiciary as an Oversight Institution and Custodian of the Rule of Law convened by the Centre for Public Interest Law on 22 May 2019, at Imperial Royale, Kampala.
The tale begins in Germany and France at the start of the 20th Century. During this period, the German constitutional lawyer, Carl Schmitt, and the French constitutional lawyer, Maurice Hauriou, wrote theoretical works that argued for implied constitutional limits on constitutional amendment. Both works are highly significant, as they established the two principal lines of argument that can be used at a theoretical level to justify implied limits on constitutional amendment.
The German and French constitutional lawyers, Carl Schmitt and Maurice Hauriou, developed the idea of implied constitutional limits on constitutional amendment at the start of the 20th Century with two very different theoretical approaches. Schmitt’s theory of implied limits on constitutional amendment was based on a certain mystical concept of the constituent power. By contrast, Hauriou argued in the tradition of the French philosopher, Abbé Emmanuel Joseph Sieyès, and relied on the procedural approach that the constituent power was to be exercised by a constituent assembly, and on the idea that certain fundamental principles were higher (natural) law and therefore constituted a limitation on amending (and possibly also framing) a constitution.
Schmitt’s theoretical works were mainly used by Dietrich Conrad, a German lawyer from the University of Heidelberg, to argue for implied limits on amending the Indian Constitution. Hauriou’s work played only a limited role for Conrad, in particular when writing about the nature of the constituent power. Conrad touched very briefly on Hauriou’s approach, but did not elaborate further on his idea that there might be certain absolute limits on constitutional amendment.
To be continued.
