Past efforts at constitutional review largely failed. Against this backdrop, the Senate has inaugurated a committee to have another go. What are its chances and what areas should it focus on? Legal Editor JOHN AUSTIN UNACHUKWU asks lawyers.
The search for a people’s constitution inched forward on January 30, when Senate President Ahmad Lawan announced the composition of a 56-man Steering and Constitution Review Committee.
The committee, with all principal officers as members, also has a senator from each state, and two senators selected to represent each geo-political zone.
Principal officers on the membership of the Constitution Review Committee include: Deputy Senate President, Ovie Omo-Agege who will serve as its Chairman; Senate Leader, Yahaya Abdullahi; Deputy Leader, Ajayi Boroffice; Minority Leader, Enyinnaya Abaribe; Deputy Whip, Aliyu Sabi Abdullahi; Deputy Minority Leader, Emmanuel Bwacha; Minority Whip, Philip Aduda; and Deputy Minority Whip, Sahabi Alhaji Ya’u.
Others are Rochas Okorocha, Imo; Sabo Mohammed, Jigawa; Uba Sani, Kaduna; Kabiru Gaya, Kano; Baba Ahmed Kaita, Katsina; Mohammed Adamu Aliero, Kebbi; Smart Adeyemi, Kogi; Suleiman Sadiq Umar, Kwara; Oluremi Tinubu, Lagos; Abdullahi Adamu, Nasarawa; Mohammed Sani Musa, Niger; Ibikunle Amosun, Ogun; Nicholas Olubukola, Ondo; Surajudeen Ajibola, Osun; Teslim Folarin, Oyo; Hezekiah Ayuba, Plateau; George Thompson Sekibo, Rivers; Aliyu Wamakko, Sokoto; Yusuf A. Yusuf, Taraba; Ibrahim Geidam, Yobe; and Mohammed Hassan, Zamfara.
Representatives of geo-political zones are Bala Ibn Na’Allah and Ibrahim Shekarau, North-West; Kashim Shettima and Lawal Yahaya, North-East; Tanko Al-Makura and Yakubu Oseni, North-Central; Abdulfatai Buhari and Biodun Olujimi, South-West; Lilian Uche Ekwunife and Chukwuka Utazi, South-East; Rose Oko and Akon Eyakenyi, South-South.
Inaugurating the committee, Lawan said: “There are several issues that Nigerians feel strongly about. “The Constitution Review Committee is supposed to be a platform where such issues will be brought, and where those who are interested should ensure that they make every possible effort, including presentations for their views to be considered.
“As a National Assembly, particularly the Senate, we want to have a very stable country. We want a country that gives every citizen the opportunity to actualise his or her dream. We want to have a security that is enhanced and an economy that works for everyone.
“Stability of the polity is important, we need to have a country before we run for elections, or indeed undertake any activity. So, we advise that any organisation or individual who has anything that should be taken on by the committee should make submissions to the Constitution Review Committee.”
Lawan’s statement suggests that the Senate wants the committee to produce a people’s constitution that will create a balance between the legislative, executive, and judicial arms of the government, meet the needs and welfare of Nigerians and provide a platform for them to actualise their dreams.
Efforts to amend the 1999 Constitution which was handed over to Nigerians by the Abdulsalami Abubakar military regime began in 2000 during the Senate presidency of Dr. Chuba Okadigbo.
In that exercise, then Deputy Senate President Haruna Abubakar and the Deputy Speaker of the House Chibudom Nwuche were named co-chairs of the National Assembly Joint Committee on Constitution Review (JCCR).
Terms of reference
The committee is expected to consider national issues including restructuring, true federalism, state police, revenue sharing formula and resource control, among others that have dominated public discourses in recent years.
It is not the first time a review has been attempted.
Speaking on the committee’s agenda, Deputy Senate President Senator Ovie Omo-Agege said it would consider the recommendations of the 2014 national conference.
That conference was convened under ex-President Goodluck Jonathan and chaired by former Chief Justice of Nigeria (CJN), the late Idris Legbo Kutigi. The conference proposed solutions to a number of the country’s challenges.
Omo-Agege also said that recommendations of the All Progressives Congress (APC) panel on restructuring would be considered. Thepanel was chaired by Nasir el-Rufai, Governor of Kaduna State.
Omo-Agege also said the committee would also consider altering the sixth schedule of the Constitution to provide for the establishment of pre-election matters tribunal, governorship pre-election matters tribunals and presidential pre-election matters tribunal.
He said: “This committee will consider the recommendations of the 2014 constitutional conference and the Governor Nasir el-Rufai-led committee on restructuring.
“It will suffice to say that an assignment of this magnitude demands diligence and commitment. So, as we embark on this very important legislative assignment, let us use this opportunity to build consensus on constitutional issues that will impact the lives of the people of our great country Nigeria.
“We must get it right for the good of our people and the unity of our great country. The Nigerian people deserve no less.”
SANs: Key areas the committee must consider
Senior lawyers including former Nigerian Bar Association (NBA) presidents Dr. Olisa Agbakoba (SAN) and Mr. Augustine Alegeh (SAN), as well as constitutional lawyer Dr. Kayode Ajulo commended the Senate’s move. They recommended several areas the committee must seek a review.
Agbakoba advised that the committee needed to develop a “Constitution review strategy.”
He expressed happiness that the committee will review the recommendations of the 2014 National Conference and the El- Rufai report on restructuring, set up by the All Progressive Congress (APC) in 2017.
According to him, restructuring or devolution of powers is crucial to deepening Nigeria’s democracy.
Agbakoba said: “The (Constitution review) strategy should consider some of the past reports of previous committees and the key points in various national conference reports, and develop a constitutional review formula that has national acceptance. The key thematic issues the committee may consider are as follows.”
He said: “Supremacy of the Constitution: This is contained in Section 1 of the Constitution which has three subsections.
We propose that in addition to the provision of Section 1(1) which provides that the provisions of the Constitution shall have binding force on all authorities and persons; every Nigerian should be expressly conferred with a constitutional right to approach the Courts to challenge constitutional infractions.
In addition to the provision of Section 1(2) which prohibits unconstitutional take-over of government, there may be a provision for sanctions for unconstitutional take-over of government. It shall be the unalterable and inalienable right of Nigerians to sanction violators of the constitutional order.”
Institutions consolidating democracy
Another area Agbakoba advised the committee to focus on is what he called “Institutions Consolidating Democracy”.
He said: “Some state institutions serve as gatekeepers and protectors of constitutional democracy. These institutions play a key role in administering and consolidating democracy and so they must be independent and constitutionally insulated from external interference and control by any person or organ of the state.
“Some of these institutions are contained in Section 153 of the 1999 Constitution and include the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission etc.
In order to ensure that these institutions consolidate democracy, it is important that their independence is constitutionally secured and guaranteed.
‘Section 153 of the Constitution falls far short of the requirement. It will be important to alter Section 153 and a good example will be Chapter 9 of the South African Constitution which provides for “State Institutions Supporting Constitutional Democracy”.
These include the Public Protector (who investigates certain conducts in state affairs), the Auditor-General, the Electoral Commission etc. in our case the EFCC, Police, Accountant General, Judiciary INEC etc. will run completely independent of other Government institutions. This process alone will dramatically alter the Nigeria democratic space.”
Judicial powers, ‘indigeneship’, devolution of powers
Other areas the lawyer advocated a review are judicial powers, ‘indigeneship’ and devolution of powers.
For indigene-ship, he said: “The Constitution provides for citizenship but what is recognised in practice is indigeneship. This may be an opportunity for the committee to reexamine and redefine the status of citizenship and indigeneship.”
He said as for power devolution, the scheme of devolution should examine which aspects of the 98 items of Legislative powers are best exercised by the Federal and State government.
“The issue of autonomy of the Local government system is vital, on the basis of the principle of subsidiarity.
“A new list of Legislative powers should be considered so as to distribute powers in a way that upholds the principles of “true” federalism.
“The Federal Government has no role in issuance of driver’s licence, marriage certificates and business permits.
“The Federal Government should devolve Legislative powers over prisons, education and health to the States. A contentious issue will be fiscal federalism but I expect the committee to take strong decisions for the common good.
“Hopefully, this will be the final process of Constitution review in a long while. It is time to turn attention to good governance.”
Revenue allocation, cost of running democracy, federal character
For Alegeh, revenue allocation, cost of running democracy, federal character concerns are among the issues that need reform.
He said: “From our electoral jurisprudence, if you look at these 14 days within which you have to file you complaints, it has knocked out so many viable petitions and so many viable claims. We need to review them in our electoral laws.
“Another area is the issue of revenue allocation. Why is the Federal Government still getting so much humongous sum while almost all the States cannot pay salaries? We have new areas of law that are emerging, we have the new media or digital media as you call it, the internet and so on that have not hitherto been there, they have not been mentioned in our Constitution.”
Alegeh suggested that when the constitution talks of the media for example, it had only the Nigerian Television Authority (NTA) and possibly Daily Times in mind.
He said: “I don’t think they had the private media organisations in mind. So the constitution now needs a holistic review to regulate them.
“The next is the cost of running our democracy, why do we have full time Senators, full time members of the House of Representatives, why can’t they be part time, how can we reduce their overall cost?
“Managing the issue of federal character, is it real or is it imagined, is there no need for further specifications in terms of Federal Character, the clamour in different parts of the country about how it appears that the federal character is being respected more in breach than in compliance.”
Rejig land ownership system
Alegeh said: “For example, in Lagos State, one cannot build on a federal piece of land with the Federal Government’s Certificate of Occupancy (C of O) without obtaining the state’s C of O.
“Lagos was a Federal Capital Territory, and by assimilating and having the Land Use Decree in the constitution, you now have a situation where there are challenges.
“You have a Federal Government C of O and Lagos says that you must get your town planning approval from the state, and Lagos State can refuse to give you town planning approval unless you have their own C of O, so you have so many people especially in Ikeja GRA, Apapa GRA and in Ikoyi, who are holding two C of Os.
“We need to have a total rejig of our system if Federal Government cannot give C of O, let them cede that power totally to Lagos State Government and if Lagos cannot do that let it cede the power to Federal Government.”
He added: “In the judiciary, there is a lot of room for specification for instance there is clamour for Senior Advocates of Nigeria (SANs) to be admitted into the Supreme Court Bench, because the constitution allows them to go, but the rules say that you must produce the judgments you have written before you are admitted into the Supreme Court bench.
“As a lawyer in practice, you only have briefs, you don’t have judgments, so how do you qualify, when the Rules say that you must bring at least 10 of your last judgments.
“How does a SAN in practice do this, how does he qualify, so that requirement in the constitution that once you are 15 years at the Bar, you entitled to be made a Supreme Court Justice is invalid given the current state of affairs, there are several issues to be addressed.
“When you hear of a 56-member committee, it means that they know that there is a lot of work to be done. And life is so dynamic that even if you amend the constitution today, by the 56-man committee, by the day the new constitution comes into effect, there will be parts of it that will need amendments.”.
Fundamental objectives and directive principles of state policy
Ajulo canvassed several areas that require a second look, including the Fundamental Objectives and Directive Principles of state policy.
He said: “It is my hope that the next amendment should correct the wrong on the justiciability or otherwise of the Chapter 2 of the Constitution mentioned above, better still, I foresee a situation where the Supreme Court under the dynamism of our jurisprudence do the needful by ensuring the justiciability of Chapter 2 which guards the fundamental objectives of state principles.
“Also, there is at present widespread discontent with the country’s federal structure and arrangements.
“All the constitutional, political and judicial aspects of the federal system need to be openly discussed.
“Issues such as revenue allocations from the Federation Account to the three levels of government; the position of local government in the federal system; sharia and customary laws under the Constitution; the power and functions of the National Judicial Council; the principle underlying the growing number of federal courts of first instance within a federal system; the formation and registration of political parties and their constitutional role; the electoral processes; etc. All of these need to be resolved on the basis of a general consensus.
Removal of immunity clause
Ajulo also suggested that the immunity clause should be removed if the offences attract criminal charges to encourage accountability by those managing the economy.
“It is, however, important to point attention to the fact that immunity is a fundamental and innate power of a sovereign which right is inalienable whether it is in the papers or not.
He added: “Personally, I must say that removing immunity is quite laughable and palpable: what is sovereignty without immunity!.”
He further advocated the establishment of Special Courts to handle corruption cases in the light of undue prolongation in the trials and prosecution of corruption cases in the regular courts.
Ajulo noted that whether it is a Sovereign National Conference, or an elected Constituent Assembly, or any other gathering that is put in place to prepare a new constitution, ‘it is highly desirable that the contents of that constitution should be widely discussed, generally understood and genuinely acceptable to all the communities and ethnic groups as well as all shades of opinion in the country.
“It is very important that several million copies of any Draft of the Constitution produced by a Constituent Assembly or a General Conference should be made available to the public throughout Nigeria before it is debated in the State Houses of Assembly.”
According to him, this will enable the people to make their views known to their representatives on specific provisions in the Draft before it is debated in the State Houses of Assembly and the National Assembly.
He added: ‘This will enable the people to make their views known to their representatives on specific provisions in the draft before it is debated in the State Houses of Assembly and the National Assembly.
“It will also enable knowledgeable contributions to be made to the debate from individuals who feel concerned about any aspects of the Constitution as well as on the document as a whole
“The making of a constitution for the country is so crucial for the social harmony, political stability and general well-being of the nation to deserve the widest possible circulation of the Draft of any constitution. Specifically, I suggest the putting into circulation of several million copies of any such Draft.
“In conclusion, I more fortified by the calibre and debonair of the members of the committee. Senator Ovie Omo-Agege is someone I know personally and I can vouch for his passion for people and constitutional development.
“Recall that he first secured his seat at the Senate on the platform of Labour Party when I was the National Secretary of the party. I am quite certain and positive on the outcome of the Committee”
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