Memorandum On Constitution Review Process: Agbakoba Writes Nigerian Senate Committee On 1999 Constitution Review
MEMORANDUM ON CONSTITUTION REVIEW PROCESS
The constitution amendment process is welcome and important as it is designed to create a stronger constitutional framework. The National Assembly Constitution Review Committee highlighted 17 issues for consideration. I will share my thoughts on the following 5 issues.
- Legitimacy, Referendum and a New Constitution.
There is a strong perception that the Constitution is not legitimate because “we the people” was enacted by General Abdulsalami Abubakar’s Military Government. To legitimize the Constitution people have called for a referendum and a new constitution. If this is not possible, the legitimacy question may be resolved by amending the “We the people” military clause in the Constitution and reenacting it as “We the people,” as amended by the National Assembly. This may help the legitimacy issue and cool down calls for a referendum and a new constitution.
- Ethnic Nationalities
Legitimacy can also be conferred on the Constitutional reform process by full involvement and incorporation of the leaders of our traditional and ethnic nationalities. The constitution reform process will gain very strong imprimatur and legitimacy by coopting these leaders. Prof. Ben Nwabueze has indicated that ethnic nationalities are the true representatives of Nigeria. To quote him, “Nigeria has no territory other than the traditional territories inhabited by its constituent nationalities from time immemorial – Yorubaland, Igboland, Hausa land, Tivland, Kanuri, Ijaw etc. It is the ethnic nationalities that ceded or granted sovereign powers of government over their territories to Britain which makes them (i.e. the ethnic nationalities) the original and primary stakeholders in the Nigerian state”. I believe that giving a prominent seat to the leaders of our traditional and ethnic nationalities will be a substitute for yet another wasteful national conference.
- Supremacy of the Constitution:
Our Constitution has always been weak. The Constitution must be supreme and inviolable, otherwise our democracy will never be strong. Prof Ben Nwabueze has suggested that a Declaration of Invalidity in respect of constitutional infractions, should be included as a new sub-section 1 (4) of the Constitution which deals with the Supremacy of the Constitution. The new section 1(4) will provide a drastic consequence for constitutional infractions.
- Independent Institutions Consolidating Democracy
Our Democracy will always be fragile without strong and independent institutions. South Africa enacted chapter 10 of its constitution titled: Institutions consolidating democracy, to guarantee the independence of critical institutions. In our case, the closest we have to chapter 10 of the South African constitution, is Section 153, but it falls short of the South African model. We need to amend Section 153 of our constitution to provide for independent institutions such as the EFCC, Police, Accountant General, INEC, Judiciary etc. The strategy is that these institutions will be completely independent of Executive control.
- Restructuring and Devolution of Powers.
Calls for restructuring have in my personal view become a catch-all phrase that has introduced more confusion than solution. I believe the simple way to go is by regional autonomy. Regional autonomy refers to the governance and administration of a federating unit in the interest of the local people, according to their aspirations. Nigeria is made up of multi-ethnic nations managed by a central authority. This model has proved unsuccessful. Europe understood that diversity is best managed by regional autonomy. Switzerland has four ethnic groups. Each of them shares the Presidency through four cantons that make up their federating units. According to Prof. George Obiozor, even though Quebec is the only fully French-speaking province, yet Canada is bilingual for the sake of Quebec. On the other hand, Yugoslavia mismanaged its diversity and the result was the emergence of six distinct countries. The same fate befell Czechoslovakia, now the nations of Czechs and Slovaks. The same is true of the centralized Russian Federation that splintered into more than 15 nations. Ethnic Nationalism, the basis for successful nation-states, finds full expression in the reunion of Communist East and Capitalist West Germany. This is a perfect case of similar ethnicities easily living together. On the other hand, different ethnicities must live in balanced diversity. Regional autonomy resolves our diversity challenge.
Devolution of powers is a related concept to regional autonomy. Devolution means transfer of powers from one level of government to another and vice versa. There is no question that a transfer of power is needed in our country from the Federal to the States. The Federal Government is overburdened with legislative powers and must shed some to the Federating units. I suggest three new legislative lists as follows -the Federal list, State list and Shared list. Nigeria operates on the principle of cooperative federalism. The shared list will accommodate cooperation between federal and state government.
I have enclosed patterns of distribution of powers within Federations based on a study of 28 Federal Constitutions a rough guide on my suggested legislative lists are simply a rough guide.
Dr. Olisa Agbakoba SAN
Patterns in the Distribution of Some Powers within Federations
(Based on a Study of 20 Federal Constitutions)
Currency: always federal
Defence: always federal, sometimes – shared
Treaty ratification: almost always federal, sometimes – shared
External trade: usually federal, occasionally – shared
Interstate trade: usually federal, occasionally – shared
Intrastate trade: usually States, sometimes – shared
Major physical infrastructure: usually federal, sometimes – shared
Primary/Secondary education: usually states, rarely federal
Post-secondary education and research: no clear pattern, usually States
Income security and Labour matters: mix of federal and shared
Pensions: shared and federal
Health care: usually States, sometimes shared
Mineral resources: no clear pattern but in Nigeria states suggested
Agriculture: no clear pattern but States recommended, Federal for policy only
Environment: usually shared States
Municipal affairs usually States, occasionally shared
Court system”: usually shared, occasionally federal, rarely States
Criminal law: no clear pattern but generally state
Police: usually shared, rarely federal
Customs/excise taxes: almost always federal.
Corporate and personal taxes: usually, shared, sometimes federal
Arms, ammunition and explosives – Federal
Aviation, including airports, safety of aircraft and carriage of passengers and goods by air – Shared
Awards of national titles of honor, decorations and other dignities – Federal
Bankruptcy and insolvency – Shared
Banks, banking, bills of exchange and promissory notes – Federal
Borrowing of moneys within or outside a country – Shared
Census – Federal
Citizenship, naturalisation and aliens – Federal
Commercial and industrial monopolies, combines and trust -federal
Control and Capital issues – shared
Copyright – Federal
Creation of States – shared
Currency, coinage and legal tender- Federal
Customs and excise duties – Federal
Deportation of persons – Federal
Designation of securities in which trust funds may be invested – shared
Diplomatic, consular and trade representations – Federal
Evidence – shared
Exchange control – Federal
Export duties – Federal
External affairs – Federal
Extradition – Federal
Fingerprints, identification and criminal records – shared
Fishing and fisheries including fishing and fisheries in rivers, lakes, waterways, ponds and other inland waters – shared
Immigration and emigration – Federal
Incorporation, regulation and winding up of bodies corporate, including co-operative societies, local government councils and bodies corporate – shared
Maritime shipping and navigation, including-
(a) shipping and navigation on tidal waters;
(b) shipping and navigation on the River Niger and its affluents and other inland waterwaysor inter-State waterway- shared
Meteorology – Federal
Military (Army, Navy and Air Force) – Federal
Mines and minerals, including oil fields, oil mining, geological surveys and natural gas – usually shared, sometimes Federal
National parks – shared
Nuclear energy – shared
Passports and visas – Federal
Patents, trademarks, trade or business names, industrial designs and merchandise marks – shared
Posts, telegraphs and telephones – shared
- Prisons – States
Public holidays – shared
Railways – shared
Regulation of political parties – shared
Taxation, of incomes, profits and capital gains, etc – shared
* Supreme and Constitutional courts are almost always established in the constitution and are thus not a head of power. In some federations, municipal, or local governments are also constitutionally established.