NIGERIAN PEOPLES MAP

NIGERAN DEMOCRACY AND CONSTITUTIONAL REFORM

THE NIGERIAN PEOPLES MAP 2015

THE PEOPLES CONSTITUTIONAL SOVEREIGN CONFERENCE: AN ANSWER TO TURE FEDERALISM. THE DIASPORA PERSPECTIVE.

BY GODSON AZU

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ABSRACTS:

Nigeria is currently facing twisted and striking challenges. This explains the present anxiety and fear among citizens about the approach and direction of the present administration. Nigerians are indeed full of expectations about what the administration has to offer in view of the enormous challenges confronting the nation with regards to the election promises made by the president Good-Luck Jonathan on his campaign trails. Thus, there are strong indications of good economic growth and social imbalance, in the glaring face of in- security and fear of un-certainty. And what everyone wants is a practical solution. In order for us to fully understand where we are and where we intend to be moving forward, there is an absolute need for us to have an informed mind of whatthis constitutional issues and processes are with regards to the huge demand and call for a constitutional reform and legislative redress to a constitution that is currently bound by a military degree, and not through the civil rule process of a ratification by the peoples representatives or a referendum by the people.

Is the present Nigerian constitution good enough for our democratic and national existence, considering the fact that it is still seen by many as an instrument of millitariocracy and sectional oligarch

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which has been running the country for over 25years? The answer could be either yes or no depending on which side of the argument one stands, in my view it’s not the true reflection of the Nigerian people and as such is not good enough sovereign instrument except for a period such as the transition period ofdemocracy. Taking this into consideration has motivated my urge and drive for the holistic demand for a true sovereign conference to determine our truenationality and identity deformity. Invoking the spirit of thisarticle would be to look at the different views of a constitution, the formation, relevance and usage around the world, what are implications of a sovereign conference in Nigeria, inview of the various call for it by many political andcommunity leaders within and out-side the country.

WHAT IS A CONSTITUTION

A constitution is the fundamental law, the basic law,of a country. The constitution determines the fundamental political principles of the government, rules of procedure of that government, rights and obligations of the citizenry and also sets forth methods to ensure accountability of governmental branches. This is universal understanding of a constitution both in developed and under-developed

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countries around the world, the Nigerian case would not be different from reality.

A CONSTITUENT ASSEMBLY

Constituent Assembly

A Constituent Assembly is a body set up to make a new, or amend the existing, constitution. Members of the Assembly are usually elected, though some may be chosen through other methods. Constituent assemblies have sometimes been very like a Parliament; in fact sometimes a nation's parliament has acted as its Constituent Assembly (like South Africa), or the Constituent Assembly has had the functions of Parliament also (like India). The Constituent Assembly exists only to make the constitution. Nigeria has had numerous constituent assemblies in the many years of its military transitional periods, which has resulted in various constitutional provisions.

CONSTITUTIONAL CONVENTION

A Constitutional Convention is yet another mechanism/body that can be used during a constitutionbuilding process. There is a distinction between whatis called a ‘general constitutional convention’ and an ‘unlimited constitutional convention’. Among the two, a general Constitutional Convention is employed when a country that has never before had or written aconstitution embarks on this process, or if the country in question wishes to revise the entire old constitution. An unlimited Constitutional Convention

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aims to revise an existing constitution to the extentthat it deems to be proper, whereas a limited Constitutional Convention only concerns itself with reforming, revising and/or make amendments to part ofthe constitution that the existing constitution allows for it to reform. Constitutional conventions have also been used by separate geographical districts in federal states in order to create, replace or revise their own constitutions. In view ofthis differentiation its very obvious the later process of limited constitutional convention is what the Nigerian House of Representative are using to deal with the present constitutional reform agenda, going by a fair political reality the process in use by the House of Rep. is not been followed through thedefine context of the limited constitutional convention.

EXECUTIVE BARGINS

There are instances where neither elected bodies nor broadly representative national conferences play a formal role in the development of a new constitution.It might be that a committee appointed by the executive develops an initial for approval either by the central committee of the ruling party, in a single-party system, or by the head of state and his cabinet. Bargains in the executive are not uncommon. To bargain is to engage in communication for the purpose of forcing or inducing the opponent to acceptthe claim that is being put forward. To achieve this end, actors engaged in bargaining rely on threats andpromises that will have to be executed outside of the

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assembly itself (be it in an informal setting or within a formal institution such as a Constituent Assembly or a National Conference). Bargaining power does not derive from the power of the better argument, but from material resources, political resources, manpower, perceived legitimacy and the like. Statements that are put forward during a process of bargaining are made with a claim of being credible, meaning that the actors must express their promises and/or threats in a manner which convinces the opponents that these indeed will be carried out. However, bargaining is as many other things during the constitution building process, a careful balance act. If a final agreement is to be reached that in addition optimally should be perceived as a legitimate agreement by all parties, bargaining needsto be conducted in a manner that is constructive. Theadded value of such interactions might also be that former adversaries are brought together through discussions and by identifying potential common interests.

EXPERT COMMISSION/COMMITTEE

One of the institutions that can be used during the constitution building process is the practice of ‘expert commissions’, sometimes also called ‘expert committees’. The commission consists of various experts in their related fields, and usually includesconstitutional lawyers, political scientists, economists and attorneys. The task of the commission

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is to review an already existing constitution and perhaps make recommendations for amendments or to create an entirely new constitution. Whether or not the expert commission is the sole institution responsible for this task will vary from one constitution building experience to another, but it is common that institutions and mechanisms co-exist side by side. If a democratic constitution building process is sought after which means significant elements of public participation throughout the process, the expert commission is very likely to workside by side with another institutional body that holds representatives of the people. This may be in abody that constitutes democratically elected representatives of the people or a body that is actually populated by a very large number of the citizenry. Even if the expert commission is indeed the only institution responsible for drafting the newconstitution it can be composed in such a manner thatit reflects the social/ethnic/religious composition of the country. The rationale underlying such an approach is to assure at least a minimum degree of representativeness. Mirroring the composition of the expert commission to that of the society in whole is of course also a method that can be chosen even if the commission works side by side with a broader representative body – as a National Conference. The approach of trying to obtain representativeness in all formal and informal for that matter, bodies during the constitution building process whether theywork side by side or succeed each other might in

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general be considered a good idea as it is likely that a sense of mutual understanding and cooperation develops between the institutions rather than antagonism and obstruction.

NATIONAL SOVEREIGN CONFERENCE

A National Conference, or a “National Convention”, usually includes a much larger number of delegates than a Constituent Assembly or other formal legislative bodies that can be employed in the constitution building process. In a National Conference a certain number of seats are set aside for delegates from political groups, civil society organizations, economic organizations, human rights organizations, community group organization, religious organizations, women organizations, trade unions, labour organizations, etc. A broadly representative organizing committee is responsible for deciding how the seats are allocated among these various organizations, political parties and communities of interest. The various sectors decide among themselves how to elect their members to the National Conference. The model of a National Conference is most commonly used in countries that are emerging from one-party rule or military governments. In these instances there are not, and probably has not been for quite some time, a

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sufficient number of political parties that are able to represent the broader public which is why it wouldnot be democratically legitimate to only include members from the political elite in the formal body ultimately chosen to guide the constitution building process. Thus, a broad National Conference might be abetter option from a democratic point of view. The most common way to proceed is that the conference agrees on constitutional principles that are immutable and then elects a transitional legislature that is tasked to transform those principles into a text, deliberate about proposed provisions (by the conference) and send a final draft to a national referendum.

Popular initiative

Constitutional building processes, primarily reforms proposals, can be instigated through popular initiative. This is however still rather uncommon – actually, the only country specific examples where this approach/mechanism have been applied is in Switzerland and in the State of California. Switzerland, perhaps, since it is one of few nations in the world where mandatory referendums are requiredon all constitutional issues. The approach of making all constitutional matters compulsory for referendumsby the citizenry may actually stimulate the population of the country in question to actively engage in constitutional issues and bring new reform proposals to the forefront of discussions – spurring and keeping the constitution building exercise a truly live and vibrant process. A country that allows

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popular initiatives for constitutional reform, meaning that it in its constitution in fact has a specific provision stating the right of the public toinitiate revisions to parts of or the entire constitution, has taken the vision of participatory constitution building and made it to a reality. Usually, the clause that defines popular initiative as an option for constitutional reform or revision also states the number of signatures required for such a process to be initiated. One can imagine that people who live in a country where such a policy is exercised are not only well acquainted with their constitution but also constantly evaluate that constitution on the basis of their understanding of the nation and also the world. Where popular initiatives are allowed and constitutionally supported the constitution building exercise is a constant process allowing the constitution to evolve and indeed be a document “of its time” as the population may very well be inspired to initiate reform proposals that resonate with the current values of their time. Allowing popular initiatives toreform parts of or the entire constitution also brings more stakeholders to the constitution building“circle” so to speak. When using a ‘popular initiative’ approach civil society organizations, individuals, labour organizations, trade unions, etc.know that they themselves can initiate a constitutional reform process without having to wait for a constitutional assembly, a national parliament,a national conference or the government to do this.

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In other words, popular initiatives, as the word already makes clear – makes the people the prime initiators behind constitutional reform and/or revision which in turn brings an entirely different dimension to the issue of legitimacy of the final document.

THE FUNCTIONS AND ELEMENTS OF A NATION'S CONSTITUTION:

COMPARATIVE EXPERIENCES IN MODERN CONSTITUTION-MAKING.

There is urgent need for Nigerians to discuss and understand some general and elementary attributes andmeanings of what a constitution is all about. Becauseof our history of dictatorship under colonial rule and military rule, Nigerians have been alienated fromthe constitutional process. We must state these points clearly so that those who are in a position tomake pronouncements on the Constitution will understand the parameters of their undertaking.

What is the relationship between Governments and the Constitution?

Constitutions empower governments. It is rule by the laws of the Constitution that confers legitimacy on agovernment. Unfortunately, because of our history of colonial and military dictatorships, there is a mistaken view in important quarters in Nigeria that it is the Government that empowers the Constitution. We suggest that the Military Government has no

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authority to empower a Constitution for the people ofNigeria. What it can do is to decree an interim Constitution that will enable Nigerians to engage in a full-blown process of constructing a Constitution later in a post-military regime.

The anomaly in Nigerian political history is that Nigerian Constitutions were approved by the Imperial Government in Britain in 1960 and by a native Military Government's Supreme Military Council in 1979. These are shameful chapters in our history. Thepresent attempt on the part of the Military Government's Provisional Ruling Council to "approve" or "ratify" another Constitution for Nigeria is sorely mistaken and will be as wrong as General Olusegun Obasanjo's "approval" of the 1979 Constitution. The CDCC must advise General AbdulsalamAbubakar that he has an excellent opportunity to makehistory by initiating a correct procedure for according full respect to Nigerian's Constitution-making process.

Who are responsible for making a nation's Constitution?

All worthy constitutions are made by citizens and their representatives. Such citizens and their representatives are people who are fully engaged in the Constitution-making process and who understand that their future welfare and that of their descendants will be shaped by the Constitution that they make. They are citizens who are passionate about

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certain political principles. These citizens agree oncertain principles among themselves but disagree withfellow citizens on other issues.

Sadly, Nigerians have rarely had any opportunity for making their own Constitution. Constitutions have largely been made for them, rather by their representatives. Under colonial rule there was reasonable consultation. Under military rule, Constitutions have been treated as privileged documents that only those who are close to authorities will handle. For instance, under the lateGeneral SaniAbacha, the Nigerian Constitution was treated as a state secret. Even now, despite General Abubakar's more open administration, few Nigerians know what draft Constitutions we are called upon to debate. It is sad that General AbdulsalamAbubakar hasdecided to base Nigeria's future Constitution on General SaniAbacha's draft Constitution which, from all accounts, was deficient both with respect to its process of making and its substance and contents. Is it not true that the draft Constitution we are now considering is not generally available to Nigerians? What would be the CDCC's estimate of the percentage of Nigerians who have read the 1995 draft Constitution? There were at least two versions of this Constitution. Those who have read one of them may have read the wrong "unauthorized" version! Even among informed and educated Nigerians the draft Constitution that is being debated remains a mystery.This is in sharp contrast to recent experiences of Constitution-making in South Africa and elsewhere.

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The CDCC must understand that Constitution-making is now an international enterprise. The Constitution-making processes in Eritrea, Bangladesh, South Africa, Uganda and several other nations have been closely watched by the international community. TheseConstitutions and the governments that subsist on them have been accorded respect by the international community because the people and their representatives were involved in their creation. The CDCC must not lead the Nigerian Head of State into a blind path of imposing a Constitution that the international community will not respect because the people have had no significant role in making a military-supervised constitution.

Elements of a Nation's Constitution-Making

There are two aspects of any good constitution that deserve to be highlighted for the benefit of the ongoing constitutional debate. First, the process by which the constitution is constructed and then approved is a major portion of any constitutional debate. Second, the contents of the constitution, usually stated as articles of the Constitution, are the substance of the Constitution and are intrinsically of the utmost importance. However, the importance of any of these aspects of the Constitution will rapidly diminish if the other is defective. Emphasis on the contents of the Constitution without the process is a poor exercise in Constitution-making.

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The processes by which Constitutions are made obviously vary from one political culture to another.For instance, constitutions in federations are complex because the states are individually involved in separate constitution-making in addition to the federal constitution. In unitary political systems, single constitutions are less involved than in federal systems of government. In both instances, however, modern constitutions involve deliberations by all interested parties, including those who seek to protect women and minority interests. Ratificationis a special process that allows the various significant elements to exercise veto-power of some degree in the outcome of the constitution. Such ratification exercises are expected to be carried outby means of referenda or by way of legislative acts by representatives of the people. These processes have usually conditioned the final products and contents of constitutions.

Modern constitutions take years to draft precisely because of such processes. The key terms in any constitution-making in modern times are compromise and negotiations. Concerned parties with competing vested interests have negotiated for months, sometimes for years, on difficult issues in Eritrea, South Africa and Bangladesh. Compromise on key issuesis of the essence of constitution-making. But there is no substitute for negotiations involving aggrievedand interested parties.

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What is alarming about the current Nigerian constitution-making is that it is devoid of process. The CDCC's charge is heavily biased in favor of the contents of the Constitution. Will there be any negotiations? If so, what parties will be negotiating? There appears to be a streak of paternalism which assumes that the 25-member Constitution Debate Co-ordinating Committee will takecare of the interests of Nigerians who have grave fears about their political future. In the comparative forum of modern constitution-making such a profile represents an outrage.

We must at least do as well as other recent experiences in constitution-making. Is the CDCC satisfied that it can do a credible job of advising the Military Government on what the right constitution should be like in a period of less than two months? What will Justice Niki Tobi and his compeers tell their international counterparts in theinevitable comparisons in international symposia about their experience in constitution-making? Nigerian Scholars for Dialogue strongly urge the CDCCto advise the Provisional Ruling Council that the process compelled by their instructions for conclusions on these weighty matters in a period of less than two months is inadequate. It would be a travesty to the process of constitution-making for the CDCC to short-change Nigerian political welfare by submitting to a process that comparative experiences in modern constitution-making render unacceptable.

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Fundamental Assumptions and Principles of Constitutions:

Comparative Experiences

There is another area of constitutions that we urge the CDCC to consider carefully in presiding over thisrushed debate on Nigeria's constitutional future. Constitutions embody fundamental assumptions that underline aspects of the political process concerningwhich the citizens of a nation have worked out a consensus. Thus, citizens of the United Kingdom understand that their system of government is a monarchy while Americans understand that their democracy is a republic. The citizens of Canada and Germany understand that their systems of government are federal and that they are subject to multiple governmental authorities, while, say, the French liveunder a unitary system of government. However, citizens espouse various principles and causes for running these systems of government that conflict with those advocated by others. Good constitutions pay attention to these common assumptions of a consensus as well as to areas of contention regardingdiffering principles for realizing the goals of the systems of government chosen by the people.

Constitutions involve negotiations and compromises among citizens because they need to work out areas ofcommon agreement and then negotiate compromises on contentious issues. Nigerian Scholars for Dialogue had hoped that there would be enough time to revisit

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these constitutional assumptions and principles in Nigeria as part of an orderly transition from military dictatorship to a democracy. We have grave fears that in this rushed "debate" on the constitution there will be neither negotiations nor compromises because ordinary people and their representatives have been largely ignored. Following military rule in Nigeria, the old constitutional consensus that Nigeria is a federation and a republichas disappeared. The CDCC has a duty to impress on our military authorities that "federal" and "republic" are constitutional terms that should have consequences for the way the constitution is constructed. The federating units (states in Nigeria)should be equal partners in the making of any constitution. A republic is a nation whose citizens have an active role in choosing the way they are governed. The CDCC should be worried that it is serving as an agency for a military-supervised constitution in which neither the states of the federation nor the representatives of the people willhave any significant role in constructing the debateson their future or in ratifying the outcome of the CDCC's deliberations.

FUNCTIONS AND ELEMENTS OF NIGERIA'S CONSTITUTION

We have liberally referred to comparative and international experiences in Constitution-making in the last section of our submission because we believethat Nigeria should benefit from other nations' encounters with constitution-making. Obviously, thereis very little room for considering other nations'

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experiences in the compressed time-span of just abouttwo months that the military authorities have given to the CDCC for organizing a debate on a draft Constitution whose existence has been a mystery to many Nigerians. Assuming that the CDCC will be limited to our own domestic considerations by the strict military character of its assignment, we believe nonetheless that there is a great deal in ourown history of constitution-making that the CDCC should confront in fashioning recommendations to the military authorities.

Colonial Constitutions and Military Constitutions in Nigerian History.

Aside from a legislative and technical change in 1963in Nigeria's official title from a Commonwealth dominion, whose Head of State was the Queen of England, to our present title of the Federal Republicof Nigeria, civilians have never been in charge of any constitution-making exercises in Nigeria. Our history of constitution-making has been dominated by British colonial officers and Nigerian military rulers. There are important similarities and differences in these two regimes of constitution-making that should be of interest and concern to Nigerians and the CDCC.

Until 1951, colonial constitution-making was in the form of decrees in which Nigerians had little involvement. Frederick Lugard's 1914-18 constitutional exercises, which resulted in the

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amalgamation of the separate colonies of Southern Nigeria and Northern Nigeria, were carried out without any consent from Nigerians. Provinces and other divisions were thereafter created according to the wisdom of British officials. The attempt by Governor Richards in 1946 to repeat another imposition of a new constitutional order in the post-War period, without any involvement from Nigerians, led to an expression of outrage and agitations for constitutional reforms that would respect Nigerians' viewpoints. These resulted in important changes in the ways Nigerian constitutional affairs were handledby British colonial officers.

The decade of the 1950s, which began with the famous Ibadan Constitutional Conference of 1950, was entirely devoted to working out fresh constitutional arrangements for Nigeria, according to the wishes of Nigerians. Right from 1950, it was clear that there were essential common interests that Nigerians sharedand wished to preserve but also nagging and profound differences that had to be negotiated. The 1950s werea decade in which Nigerians learnt to respect others'differences. The most important outcome of the negotiations of the 1950s is that Nigerians agreed toadopt a federal system of government in which the constituent units chose their separate paths of governance and political development.

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These changes affected the process by which colonial constitution-making was carried out in the 1950s. Beginning with Governor-General John Macpherson's "ladder" arrangements for selecting representatives in 1951, constitution-making was initiated from the bottom, moving upwards as it were in a pyramid. The final outcome was the Constitution of 1960 and 1963. Significantly, each of the constituent units of the Nigerian Federation had its own Constitution. For instance, the Eastern Region chose not to have a House of Chiefs, while the West and the North each had a House of Chiefs. The 1960 and 1963 Federal Constitution was, in a real sense, negotiated as a compromise from the interests and demands of the constituent units of the Nigerian Federation. Despitethese variations, the British colonial rulers had thelast word in "approving" these constitutions.

Military rule altered this constitutional profile profoundly. First, military rule suspended those aspects of the Constitution with which it felt uncomfortable, retaining only those articles and sections of the Constitution that it found useful forits dictatorial purposes. Second, military rule was uncomfortable with the restrictions that a federal system of government imposed on its domain. It chipped away at the federal arrangements that Nigerians had labored to attain in the 1950s. During Mohammed/Obasanjo phase of military rule (1975-79), federalism virtually disappeared. In subsequent regimes, the term "federal" in Federal Republic of

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Nigeria has become vacuous, just as the term "republic" has become a mere fetish without a meaning. Over-centralization, bordering on the canceling of federalism, is the destructive outcome of military rule in Nigeria. These changes have intruded into the military's attitude towards the Constitution and into its approaches to constitution-making.

Federalism and Constitution-Making

The CDCC and all Nigerians must regard the ongoing debates as a prelude to the restoration of federalismwhich is the fundamental assumption around which all Nigerians have developed a consensus. Even if the CDCC were to feel limited by the restrictive terms ofreference dealt to it by Nigerian military authorities, it must not treat lightly references to "federalism" and "federal" in General AbdulsalamAbubakar's instructions. Constitution-making under military rule has breached the spirit offederalism. In a federal system, each constituent unit must be allowed to make its own constitution, establishing at the minimum the machinery for maintaining law and order in its own domain. The current debates offer an opportunity to restore federalism, according to the historic wishes of the Nigerian people.

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The ongoing efforts at Constitution-making will be incomplete if it does not involve constitution-makingexercises by each of the constituent units (that is, states) of the Nigerian Federation. It is silly to believe that the Federal Government can construct oneuniform Constitution for all of them. The grace of the 1963 Constitution is that it embodied the separate Constitutional laws of each of the constituent units of the Federation in pre-military Nigeria.

We realize that Nigerians are fearful that the creation of states under military rule (increasing the numbers from 4 in 1963 to 9 in 1967, 19 in 1976, and subsequently to 37 states at the present time) may have weakened the states. Some even allege that most of these states will not be economically viable.However, we urge all Nigerians to recognize that noneof these states is smaller, either in land area or population numbers, than the West African nation of Gambia, a full-fledged member of the United Nations. Nigerian Scholars for Dialogue believe that with a proper revenue allocation formula, each of the existing states of the Nigerian federation will have adequate human resources for upgrading its opportunities in a Nigerian nation. Each should be given a chance to construct its own Constitution thatwill be compatible with the Federal Constitution but with its own distinction. For instance, those of themthat want to have a separate House of Chiefs should so indicate in their Constitution. Those of them that

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want their own flags in addition to the national flagshould be able to adopt their own state flags. All ofthese choices will enrich Nigeria's diversity, and will not subtract from Nigerian nationhood.

States' Rights

It is appalling that in a federation of Nigeria's complexity, the needs of the states have not been recognized in the current debates. Most Nigerian citizens will live directly under the mandate of State Governments, not the Federal Government. Sadly,we are in a situation now in which the Federal Government is dictating what the states need. Since all state officials are currently appointed by the Federal Military Government or else are subject to sanctions from the Federal Government, there is no representation of the views of the states. Nigeria's budding civil society community does not include any active advocacy on behalf of states. Nor are the political parties that currently vie for control of power from the nation's capital at Abuja overtly concerned with the fate of the states in a federal system of governments. We believe that this is dangerous for the future of Nigeria, since the Constitution may be biased against the states. In order to ensure that the views of states will not be ignored, we suggest their involvement in the constitution-making exercise in two ways. First, eachstate should be required to create its own constitution. Second, each state must be given an

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opportunity to vote its approval or rejection of the Federal Constitution.

Approving and Ratifying the Constitution

The terms "approval" and "ratification" have weighty meanings with respect to Constitution-making. We notethe following sentence in the announcement setting upthe CDCC: "General Abubakar indicated that the final constitution will be published after its ratificationby the Provisional Ruling Council (PRC) before the governorship elections slated for January 1999." We respect the authority of the Provisional Ruling Council. However, we urge the CDCC to convey to this supreme body the danger in its attempt to "ratify" a constitution which it has also constructed.

Ratification is the final process of a constitution. In a federal constitution, it is expected to be ratified through approval by some pre-defined percentage of the legislatures of the constituent units of the federation. Alternatively, approval by areferendum of adult voters may be required as an indication of ratification. It is unwise for the samebody that constructs the constitution to be ratifyingit. Yet, that is what will be happening if the SaniAbacha draft Constitution is ratified by General AbdulsalamAbubakar's Provisional Ruling Council. Withall due respect, the PRC's attempt is beyond acceptedpractice and will be laughed at by the international

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community. Whatever constitution emerges from these exercises can only be legitimately ratified by the Nigerian people and their representatives, not by a military council. In the interest of the honor of ourdear country, the CDCC is duty-bound to inform the powerful members of this body of the concerns of Nigerian Scholars for Dialogue on this score.

The Fundamental Nature of Constitutions versus Legislative Redresses

There is an important difference between the fundamental and timeless issues which constitutions are crafted to address and solve and more ephemeral matters which legislative redresses should handle. Unfortunately, because of prolonged military rule there are myriad legislative matters that await redress. It is alarming that many of these are now being pushed into the constitution. This is unwise and even dangerous for our future political fortunes.We urge the CDCC to ensure that it will advise the military authorities that a Constitution is a handbook that states general principles which are important for the governance of a nation, not a text for handling issues that may be corrected by legislative action.

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We observe that a number of the terms of reference onwhich the CDCC is required to work are concerned withlegislative matters. Please see our comments on thesein a separate submission.

This is an adaptation from the submission made by the Association of Nigerian Scholars for Dialogue in 1999

Whatever the reason, military regimes in Nigeria havebeen the primary instigators of constitution buildingprocesses in the country. The fact that the military has been driving constitutional design efforts has impacted the process in significant ways. First, the efforts tend to be largely top-bottom trickle down affairs, with input from civilian stakeholders carefully managed. Second, because the military is overwhelmingly dominated by men, past constitution building processes have not been gender-inclusive. Third, as military officers and political elites are often one in the same in Nigeria, the resulting so-called civilian government often has a close connection to the military. All of these phenomena come to the surface in the current constitution, written in 1999. In order to understand the overlapping characteristic of the Nigerian constitution it is very important to take a look at the constitutional processes of the two most recent constitutional developments, with military influencesin view of the 1979 and 1999 constitutions.

THE 1979 CONSTITUTION BUILDING PROCESS

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Firstly, the constitution building process that resulted in the 1979 Constitution, which gave rise toNigeria’s Second Republic. Thus, in one form or the other 1979 Constitution heavily influenced the 1999 document. The disapprobation that greeted the later constitution was a combination of criticisms of process and substance. Examining both as they relate to the 1979 Constitution provides much needed contextfor the current constitution building process.

At the 1st October 1975 broadcast marking the 15th anniversary of Nigerian independence, General MurtalaMuhammad outlined a program to end military rule and begin the transition to a new constitutional order. The following plans were set-out; First, additional states would be created; the government would empanela Constitution Drafting Committee to produce an initial version of a new constitution; Local government structures would be reorganized and new elections would be held at the local level; These newlocal governments would then act as electoral colleges in the selection of a Constitutional Assembly. As the Constitutional Assembly debated the CDC’s draft, the state would lift the ban on political activity and new parties would be formed. In accordance with the provisions of the new constitution, state and federal elections would be held, including those to elect a president and the vice-president.

As mentioned above, Muhammad faced pressure to deliver on his promises after the failure of General Gowon to carry out a similar program. Support for a

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return to civilian rule was increasing in the wake ofthe end of the Biafran War. The surrender of Igbo forces spurred a series of changes pointing towards increased indigenization of the Nigerian state. The government scrapped the pound and pence in favour of the new naira and kobo. A wave of nationalization swept over foreign businesses. Muhammad tapped into adesire to create a constitution that spoke for Nigerians, not a document that was a vestige of colonial rule.

Muhammad almost immediately followed his pronouncement with concrete action. In early October 1975, the government appointed a Constitution Drafting Committee, headed by respected scholar ChiefRotimi Williams. The CDC was composed of 50 members, two representatives from each of the 12 states, and “learned men” in areas deemed relevant to the drafting enterprise, such as law, history, economics,political science, and other social sciences.

On 18 October 1975, Muhammad addressed the inaugural meeting of the CDC and outlined eight issues of importance to the ruling Supreme Military Council:

1. The creation of viable institutions which ensures maximum participation and consensus and orderly succession to political power;

2. The elimination of cut-throat political competition based on a system or rule of winner-takes-all;

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3. The discouragement of institutionalized oppositionto the government in power;

4. The development of consensus politics and government based on a community of all interests rather than the interests of sections of the country;

5. The establishment of the principle of public accountability for all holders of public office;

6. The elimination of over-centralization of power ina few hands and the decentralization of power as a means of diffusing tension;

7. A careful definition of the powers and duties of the leading functionaries of government;

8. The evolution of a free and fair electoral system which ensures adequate representation of the cross-section of the nation at the Center.5

The desired structure of government was a presidential system, buttressed by an independent judiciary as well as independent ombudsman-like institutions like the Public Complaints Bureau. Further, in response to the concomitant concerns about abuse of the proposed devolution, the number ofstates to be created was circumscribed.

The government took an active role in the 1979 Constitution building process from the very start. This was the case for two reasons. First, the processwas, after all, a government initiative and thereforesubjected to close scrutiny from the military regime in order to secure its success. Second, and on a

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related note, past military coups and governmental intervention had been justified by a belief that civilian regimes had failed to carry out their mandates or were not up to the task of governance. Todemonstrate that it was a more competent architect and manager of a new dispensation, the military regime headed by Gen. Murtala Muhammad maintained a close watch over the events that were expected to culminate in the delivery of a constitution for the people of Nigeria.

After an unsuccessful coup attempt resulted in the assassination of Muhammad on 13 February 1976, his second in command, Lieutenant-Colonel Olusegun Obasanjo took control of the government and the constitution building process. The work of the CDC continued, as the members solicited input from throughout the country, surveying Nigerians throughout the country. The CDC delivered its report,the first volume of which contained the draft constitution, to the new Head of State, Lt General Olusegun Obasanjo, on 14 September 1976. The result of this consultation period was a September 1976 two-volume report that delineated the major issues in theproposed constitution. “The Great Debate,” a period of intense public dialogue on constitutional issues, was framed by the issues presented in the September report.6 For the next twelve months, “various groups in different areas all over the country” discussed the draft document.7 Substantive input, however, camealmost exclusively from the CDC and the Supreme Military Council.

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As public debate continued on the draft, the first nationwide local government elections were conducted,in December 1976. Following the plan General Muhammadhad outlined in his 1975 address, the new local governments participated in the selection of the Constitutional Assembly in August 1977. Local government councils, serving as electoral colleges, selected 203 of the 230 members of the CA.8 An additional 20 members were appointed by the federal government, through the Supreme Military Command, which also appointed the CA chairman and six subcommittee chairmen. There were five women in the 230-member body. Of the five, only one woman was elected by the local government process.9

The CA met from October 1977 through June of the following year. The meetings were highly charged, as evidenced by the walkout of 93 members supporting broader application of Shari’a law in the northern part of the country.10 The disgruntled delegates sought the creation

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NIGERIAN PEOPLES MAP

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