The call for a “people’s” constitution to replace the one produced by the military in 1999 is not new.
Associated with such calls is the need for restructuring and devolution of powers.
Recent constitutional amendments have addressed some of the power devolution demands, but the call for a new constitution persists.
A former Commonwealth Secretary General, Chief Emeka Anyaoku, re-ignited it while delivering the 2023 Convocation Lecture of Afe Babalola University.
He believes the only way to address Nigeria’s many challenges is through a new Constitution.
Anyaoku said: “I call on the Presidency in consultation with the National Assembly, instead of continuing to tinker with the 1999 Constitution, to acknowledge the urgent necessity of a new Constitution to be made by the people of Nigeria.”
He called for a constituent assembly to work out a new Constitution.
Chief Afe Babalola (SAN) agreed with Anyaoku, saying: “Until we change the Constitution, there is no way we can achieve what we ought to achieve.”
Does Nigeria need a new Constitution to address its challenges, and are the calls realistic, especially given the complicated nature of producing a new constitution?
Anyaoku explained what the new constitution should entail.
He said: “The essence of the new Constitution should, in recognition of the crucial principle of subsidiarity in every successful federation, involve devolution of powers from the central government to fewer and more viable federating units with strong provisions for inclusive governance at the centre and in the regions as was agreed by Nigeria’s founding fathers…
“I believe that Nigeria is still salvageable. The country can still be restored to greater peace, greater security, a renewed sense of national unity, greater political stability, and a more assured pace of economic development.
“To arrest the ongoing deterioration of the situation in the country and to achieve the desired transformation for the better, we need a system of government that not only addresses our diversity but is also based on a Constitution that can correctly be described as a Nigerian people’s Constitution.”
He advised the Federal Government to “first, convene a national Constituent Assembly of directly elected people on a non-party basis representatives whose task would be to discuss and agree on a new Constitution, taking into account the 1963 and the 1999 Constitutions, as well as the recommendations of the 2014 national conference.”
He added: “The management of the work of the Constituent Assembly should be entrusted to a six-member Steering Committee of equal individual powers (possibly the two co-chairmen, two vice-co-chairmen, two joint-secretaries) elected from each of the six geopolitical zones by members of the Assembly themselves.
“The agreed draft Constitution should be put to a national referendum for adoption by a majority of the voters, after which it should be signed by the President.
“In my view, the essence of the new Constitution should, in recognition of the crucial principle of subsidiarity in every successful federation, involve devolution of powers from the Central government to fewer and more viable federating units with strong provisions for inclusive governance at the Centre and in the Regions as was agreed by Nigeria’s founding fathers.”
Chief Babalola, who condemned the state of affairs in Nigeria, noted that in the last 30 years, he had been calling for a new constitution that would address many problems inhibiting development.
He urged President Bola Ahmed Tinubu to listen to the voice of wisdom and begin the process of a new constitution without further delay.
He said the perception of politics as a lucrative business rather than a service is among the things the new constitution would address.
“Until we change the constitution, there is no way we can achieve what we ought to achieve,” Aare Babalola said.
Senior lawyers back call
Eminent lawyers, including a former President of the Nigerian Bar Association (NBA), Dr Olisa Agbakoba (SAN); Chief Wale Taiwo (SAN), Godwin Omoaka (SAN), Wahab Shittu (SAN), George M. Oguntade (SAN), Chief Babatunde Fashanu (SAN) and Dr Fassy Yusuf weighed in on the issue.
Dr Agbakoba aligned with the submission of Chief Anyaoku.
He said: “Ayaoku is absolutely correct. Nigeria needs a new political arrangement in order to move forward and I trust President Tinubu is clear on this.”
Omoaka agreed with the calls for a brand new constitution.
He stressed that the 1999 Constitution was crafted by the military, not the Nigerian people.
“Hence, it is fundamentally defective in many areas, leading to the perpetuation of injustice and inequality in the country,” he said.
According to him, a new constitution, which will be the product of negotiation and consensus by the people, will address many of the ills threatening the existence of Nigeria as a corporate entity today.
“I must hasten to add that such a constitution will not be the complete panacea to our many problems,” he said.
Shittu believes that the current constitutional framework is inadequate for the complexities of Nigeria.
One reason, he said, is that the country cannot claim to operate federalism when our Constitution is essentially unitary in orientation
He noted that the options proposed by many include either a regig of the present constitution or a brand new constitution altogether.
Shittu said: “My take is a return to a plebiscite or a referendum of the Nigerian people to answer two basic questions.
“First, do we really want to live together as one united and indivisible people? If yes, under what terms?
“The answer to these two questions will determine the nature of constitutional framework that will be suitable for Nigeria.”
He said until this reality is faced, the polarisation of the polity will continue.
“Current constitution can’t take us to the Promised Land,” Shittu added.
Dr Yusuf said every patriot must subscribe to the fact that Nigeria needs a new constitution, a new structure and a new direction.
He believes the current constitution foisted on Nigerians by the Abdusalam Abubakar junta is not capable of taking the country to the promised land.
Yusuf said: “With the peculiarity of the Nigerian situation by now, we must realise that the Presidential system of government is not only wasteful, it is irrelevant to our society.
“So, it is in our own interest to go back to the structure we were operating before the military intervention in January 1966.
“We must in trying to do that, embark on developing a zero-based constitution that will take into consideration the peculiarities of our situation, the lessons we have learnt over the years 60 years so that every part of this country can develop at its own pace.
“Power should not be concentrated at the centre. There must be devolution of power and at the end of the day, let us have a constitution that we can all be proud of and that will satisfy the yearnings of Nigerians, we deserve a new constitution.”
‘Faulty constitution must be changed’
Chief Fashanu also agreed that the 1999 Constitution is faulty and must be changed.
According to him, the 1999 Constitution is, on the face of it, a fake document because it has as its introduction: “We the people…do hereby make, enact and give to ourselves the following Constitution” when the constitution was not made by the people of Nigeria but by a few people in a military regime.
According to him, this is the main reason the Fourth Republic is the worst by any measure in the annals of Nigerian history because something built on nothing cannot stand but crash.
Fashanu said: “It is obvious that this fake contraption called the 1999 Constitution must be discarded for Nigeria to make progress.
“But the recipe being prescribed by these two very honourable men presupposes the authentication of a National Assembly that evolved under this selfsame fake constitution to midwife a Constituent Assembly and a new constitution. Is the foundation of that new constitution not also faulty?
“A Yoruba saying goes thus: ‘Amukun eru e wo, o ni oke le nwo…e o wo isale’. Literal translation: A shout out to a K-legged person carrying a load on his head that the load is bent, he replies back by saying you are focusing on the top alone and neglect the below meaning contextually that a faulty foundation brings about a faulty structure built on it.
“What is then the answer to obtaining a new constitution? A revolution is the answer and it doesn’t have to be bloody.
“The 1999 Constitution and those who evolved officially under it must be swept aside and the several nations within Nigeria must get together under the watch and guidance of their notable leaders (maybe with the assistance of external bodies like ECOWAS, AU and the UN) and organise an election into a Constituent Assembly from which a new Constitution made by the Nigerian people themselves can evolve and a new Nigeria will be born.”
For Oguntade, it is not debatable whether Nigeria needs a new constitution.
He said: “It is indubitable that the current Constitution has now become an anachronistic relic that is creating more problems for the country daily. It is no longer fit for purpose if it ever was.
“The Constituton requires an urgent review and wholesome replacement such that it will reflect the realities of today.
“I am not talking about intermittent alterations of sections as is the current style and practice, but a fundamental replacement.
“The making of a new and fresh Constitution reflective of the wishes of the majority of Nigerians is beyond the work of the current National Assembly.
“It must be the product of a representative constitutional conference where all the entities that currently make up the country can frankly and honestly discuss very salient issues affecting them.
“It is only after such a crucial and indispensable exercise has taken place that the National Assembly can commence the process of complete replacement. “
Oguntade said the biggest problem with the current Constitution, which he said is universally acknowledged, is that it is not reflective of the true federalism that Nigeria claims to practice.
The SAN added: “There is simply too much power concentrated in the centre thus rendering the constituting units impotent and ineffective.
“There can be no true federalism without fiscal federalism as generally understood. It is an aberration.
“A look at the matters contained on the Exclusive, Concurrent and Residual Lists of the current Constitution will provide testimony to the fact of over-concentration of power in the centre.
“Many states today are not viable and would have been declared bankrupt and liquidated if they were trading concerns.
“On the other hand, because the centre is so powerful, particularly financially, the fight to control it is now tearing the country apart. It has created an existential threat that worsens daily.
“The President and Commander in Chief who has sworn an Oath to protect and defend the country needs to take the bull by the horns, put politics and personal threats aside, and without delay, set in motion the process of convening a National Constitutional Conference.
“Failure to act will in my humble view constitute an abdication of leadership responsibilities and may be tantamount to a brazen breach of the Presidential Oath.
“I am sure our President understands these challenges more than anyone else, given the role he has played to date in the development of this country. I am hopeful and expectant that he will act in due course.”
Agabi: nothing wrong with 1999 Constitution
Some believe a new Constitution is not necessary.
One of them is former Attorney-General and Minister of Justice, Kanu Agabi (SAN).
To him, there is nothing wrong with the 1999 Constitution.
Speaking at an event by the Forum of Former Deputy Governors of Nigeria (FFDGN), he called for a national integration commission.
Agabi argued: “There are some of us who feel that the Constitution is an invalid document, it is illegitimate, and that it is a product of the military. That is a wrong position. We have a constitution and must observe it.
“However good the constitution is, it is not a self-enforcing document; it requires good people to enforce it.
“It is not intended to be a perfect document. The nation must begin to respect the constitution.We should have a National Integration Commission. Once a nation adopts a presidential system of government, unity is no longer optional.
“I appeal to the Federal Government to come to terms with people who dissent this administration. We have hope; we shall get there”.
Chief Taiwo noted that the call for a new constitution has become a sort of ritual for restructuring and comes up with a change of government or transition.
He asked: “What are the challenges we have identified and attributable to the extant Constitution? What are the causes of those challenges? Do they truly stem from the Constitution?
“Can the Constitution be amended to correct and set right those challenges? If an amendment will not be a solution, how can we bring about a new Constitution?”
To him, a Constitution is only as good and effective as its operators.
Taking the argument further, he added: “Chapter II reinforces the generally held belief that sovereignty belongs to the people of Nigeria (section 14(2)(a)). Will a new constitution espouse different fundamental objectives and directive principles of state policy?
“The answer is definitely in the negative. As I alluded to above, the constitution is only as good as its operators.
“To give you an insight, take a look at the current set-up of the Supreme Court of Nigeria, the apex of the third organ of government.
“The constitution, section 230, fixes the number of Justices of the Supreme Court at 21, but we have just 10 justices presently. Is that the fault of the constitution itself or its operators?
“Did the number of justices reduce to the current unacceptable number by accident? Isn’t there a laid down process for filling vacancies? Why have we failed to abide?
“We may go through the constitution and probe inadequacies especially as to the governance structure like the current underutilisation of the local government administration system, but the problems are not worth ditching the current constitution for another.”
Taiwo believes the current constitution should be retained even though further amendments or alterations may help invigorate the ideals which we seek for our country.