Agbakoba Writes Nigerian Senate Committee On 1999 Constitution Review

Memorandum On Constitution Review Process: Agbakoba Writes Nigerian Senate Committee On 1999 Constitution Review

MEMORANDUM ON CONSTITUTION REVIEW PROCESS

INTRODUCTION

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

Elections- shared

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

Insurance- 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.