Decolonising the Nigerian Constitution

In the past two weeks, the Occupy Nigeria movement has developed far beyond a demand to return the price of fuel to N65 per litre, with calls for the government to reduce its own bloated costs and investigate the obviously rampant corruption in the oil sector.  Already, the government has responded, with the Minister of Petroleum’s statement this evening to invite the EFCC to investigate fuel subsidy payments and for an independent auditor to follow-up on the KPMG report. Whether or not this belated action is sufficient to counter a cynical response, deeper issues still have been raised to the surface. Nigerians are beginning to ask fundamental questions about the kind of country they would like to live in. A new sense of what Nigerian citizenship might provide is floating up into the air.

I invite you to compare and contrast for a moment the role the US Constitution plays in the lives of Americans with that of the Nigerian Constitution in Nigeria (the current version dates from 1999).  At this stage, I’m simply asking you to dwell on the impact and effects of both constitutions on everyday life, and nothing more. 

As we know all too readily from US media and discourse, Americans are raised to understand their constitution and the definition of the rights of the citizen enshrined within the all-important Amendments.  Laws in the US are grounded in the constitution and must be formulated in accord with how the rights of the citizen are set in balance against the tripartite powers of the state (the executive, the legislature and the judiciary) in the context of a secular federation.  Above all, thanks to the constitution, the rights of the individual run deep in American discourse. No matter the myriad and profound historical errors of the United States (originating in the twin horrors of an erasure of indigenous peoples and African slave labour), Americans are justifiably proud of the constitutional and legal instruments that guide their lives. It is precisely the American Constitution, for example, that continues to define Guantanamo as a stain upon the conscience of the country. The US Constitution’s inviolate stance on the rights of the American citizen haunts the actions of the US military overseas, reducing the non-American other to the status of “bare life”.

In Nigeria, we often experience almost the diametric opposite to the statutory privileges of the US Constitution.  Many Nigerians have little idea of the contents of their constitution and are not taught the document at school.  Nigerians are therefore not educated to be citizens of their own country; they are not made aware of their rights or brought to understand the role government should play in their lives since they are used to performing the roles themselves i.e. providing security, education, health etc.

Many Nigerians are not aware, for instance, that although the state is not aligned with any particular religion, their constitution is still not secular. I quote: “Having firmly and solemnly resolve, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God.”  Many are also not aware that Nigerian women cannot confer citizenship through marriage and are therefore effectively second-class citizens in their own country. See this excellent analysis by Charmaine Pereira on the gender bias of the 1999 constitution.

Copyright Victor Ekpuk, 2012

Nigerians are also scarcely aware what powers the state is given, and what rights Nigerian citizens have in response. The history of the Nigerian constitution is in fact the history of an imposition, firstly by the British colonial power (the Richards, Macpherson and Lyttleton constitutions of the 1940s and 50s) and then by a litany of military dictators from the 1960s onwards. One might have hoped that independence would provide the shining opportunity to look at the constitution holistically and see how it could be fully adapted to suit the complex reality of Nigeria. Instead, many of the foundational narratives the British bequeathed were left unchanged.

It is therefore little surprise that the 1999 Nigerian constitution is often ignored in the current institutional arrangements of the state. One need only think of the Governor’s Forum and the Excess Crude Account, governance instruments which oversee all oil revenue to the State over and above the barrel price set within the annual budget (US$70 for the 2012 budget), to see that some critically important institutions in Nigeria often have absolutely no constitutional basis.  The proposed sovereign wealth fund, which would ensure that “excess” oil wealth is put into a investment/savings account, while an excellent idea in theory for Nigeria, would, given current arrangements, also have no constitutional basis.  The practice of creating institutions which have no grounding in the constitution effectively licenses an ‘anything goes’ approach to governance, whereby the revenues from oil can be frittered away by quasi-legal quick-fixes without any accountability checks and balances.  Billions of dollars can, and have disappeared in the process, with little to show for the money.

All buildings made to last need to be built upon solid foundations.  There is a refrain that rises into volume intermittently among some Nigerians: the need for a “Sovereign National Conference.”  I’m not sure what value a Grand Hural of the Big Men (and doubtless, a smattering of Big Women) would have.  For example, the grand talkathon organised under Obasanjo a few years back changed little.  Instead of the chimeric ideal of a national settlement attained merely through discussion, something more foundational is required.

Given the collective passion of Nigerians in the past few weeks for a new consensus, the time has never been more ripe for a complete rethinking of the Nigerian constitutional DNA, finally wiping the slate clean the legacy of British colonial rule and its post-Independence military offshoot.  The place of beginning should lie in the definition of the core powers of the State (the legislature, the executive and the judiciary) vis-à-vis the rights and obligations of the citizen, away from a man-centric, hetero-centric, President-centric paradigm. As well as core institutions such as parliament, a presidential office and ministries, a healthy democratic state requires public institutions that are independent of government, such as an anti-corruption commission, sector-specific regulatory bodies, an auditor general’s office and, if there is to be one, a state broadcaster.  The simple truth is that under the current constitutional framework, the president has far too much power in Nigerian governance (such as the power to pick and sack the Chair of the EFCC and select the governance boards of ministries, departments and agencies of the Federal Government).  There should be many more autonomous counterbalancing powers built into the system and institutions created whose remit is to provide checks and balances on Presidential prerogative. 

Another key constitutional whose time has come and gone is the idea of Federal Character and the “State of Origin”, perhaps the most nefarious example of the law of unintended consequences (dating back to the 1979 Constitution). It should be repealed.  The distinction it created between ‘settler’ and ‘indigene’ can only serve as a barrier to the notion that Nigerian identity comes first, over any regional, religious or ethnic specificity. One can argue that a key dynamic behind the periodic surges in ethnic violence in Plateau State is the direct result of this artificial settler/indigene divide. Repealing the Federal Character principle would also enable a more clearly meritocratic civil service that incentivises the best minds from across Nigeria to play their part in the administration of the nation.  A country can only develop on the basis of a competent administrative elite. Again, there must be a savings and investment function built into the constitution, to enable a sovereign wealth fund to be founded, perhaps modelled on the Norwegian and Qatari case studies. The new Nigerian constitution must rinse itself clean of all gender bias, and empower state and local government to play a stronger role in serving their communities via a stronger principle of regionalisation.  This would facilitate the down-sizing of the Federal allocation, enabling the long-called for ideal of “fiscal federalism”.  In its wake, the National Assembly would shrink back to an appropriate slice of the Federal budget, and the temptation to create duplicate agencies of government would be suppressed.

As we have seen in many inspiring stories of late – such as Muslims and Christians guarding each other while at prayer - when pushed to the brink, Nigerians have demonstrated a remarkable sense of unity across difference.  There is nothing to fear then in enabling greater political regionalisation and a devolved model of the state: indeed de-centralisation is the way of the world these days.  Despite plaintive calls from some corners of the Niger Delta for secession, one has to read it as a cry of pain, rather than a feasible alternative.  The Niger Delta cannot remain as under-developed and polluted as it has done for so many years.  Devolution and regionalisation would place the core of government closer to the people and allow stronger accountability pressures to remain in the system. Finally, it is long since time that state governors were held accountable for their financial actions, by removing the immunity clause.

There are many more aspects of the 1999 Constitution which need to be amended.  However, my humble suggestion is this: not to attempt to renovate a house in which people have lived uncomfortably for so long.  Why not start again, modelling a new Nigerian Constitution on a paradigm template (from the US, or from South Africa for example), which empowers citizens regardless of region, gender, sexuality or creed and reduces the overwhelming power of the “Commander in Chief”, recalibrating what it means to be a Nigerian citizen, facing the 3^rd millennium in a changing world.  Isn’t that what Occupy Nigeria is yearning for?