1999 Constitution amendment: Is Senate afraid of restructuring?
The crusade for restructuring has suffered a setback. At a time stakeholders, including statesmen, politicians, human rights crusaders and leaders of ethnic nationalities, are intensifying their agitations for decentralisation of power, the Senate is aloof. The casualty of the gross insensitivity is the proposed devolution of powers. Having rejected the item, it is evident that the National Assembly has embarked on cosmetic amendment of the 1999 Constitution. The outcome of the exercise will not offer any solution to the national question. To Nigerians, the so-called piecemeal amendment may be a waste of time and an exercise in futility.
The National Assembly may be the major beneficiary of the intended amendment. For example, senators are pushing for a law that will make the president lose the power to assent to the amendment. If the amendment scales through, the legislature will have sweeping powers to alter the constitution. In its bid to escape the searchlight, the lawmakers are also thirsty for immunity. Besides, they want former Senate Presidents, House of Representatives Speakers and their deputies included in the Council of State. Although, the Federal Capital Territory (FCT) is to be perceived as the symbol of unity, non-indigenes should forfeit the right to serve as its minister. The Independent National Electoral Commission (INEC), which is struggling to cope with the conduct of general elections, is to be saddled with the additional workload. If the Senate has its way, the national umpire should be conducting elections in 776 local governments.
Although, other items in the proposed amendment-the time frame for budget presentation, the separation of the offices of Federal Attorney-General and Minister of Justice, and the Accountant-General of the Federation from the Accountant-General of Federal Government-are laudable, the motivation for dumping the most important item is unknown. The rejection of power devolution has far-reaching implications for the polity. The structural imbalance is inadvertently sustained. The skewed power distribution between the distant power-loaded centre and pauperised states will continue unabated. The centre will remain attractive to competing political blocs in their stiff competition for power and abundant, yet elusive federal resources. The centre may remain unproductive; it will continue to hold the chunk of the money, but unable to perform corresponding responsibilities. The Land Use Act is left intact.
Also, security may continue to be at a low ebb. Lack of devolution means that state or community police will remain a dream. Governors who are chief security officers of their states will continue to depend on the Inspector-General’s orders to maintain law, order and peace. The crisis of distribution may linger in the absence of a satisfying formula for national creation and distribution. This may be infuriating to champions of resource control and derivation principle. Thus, the on-going constitution amendment may not inspire a new national spirit among Nigerians who are disillusioned with the boring social order. Neither can the amendment proposals they voted avert disintegration.
The disposition of the senators underscore their tacit endorsement of the unitarist legacies of the military regimes, which their civilian successors have failed to alter in the last 18 years. It may fuel a renewed clamour for a Sovereign National Conference (SNC) where representatives of the various nations constituting Nigeria will discuss the basis for peaceful co-existence.
However, the Senate’s position is not final, even for now. To amend the flawed constitution, two-third of the 36 Houses of Assembly must vote in its support. The envisaged “legislative referendum” may become the albatross of the entire exercise. It is doubtful, if the amendment will pass the test at the state Assemblies. What the tone of the debate on the floor of the hallowed chamber suggested was that the majority of senators voted without wide consultations with their constituencies. There is shortage of courage to embark of fundamental constitutional reforms. Obviously, there is a deep gulf between the elected representatives and the electorate. When the majority of constituents are clamouring for the redress of the injustice of lopsided federalism and their representatives are facing the opposite direction, their behaviours smack of failure of representation.
In a fit of irony, the senators rooted for autonomy for Houses of Assembly and local governments. The move may spark a fresh row. While financial independence is desirable for the legislative arm at the state level, the proposed autonomy for the local council is a subject of controversy. Under the constitution, the power to create and dissolve the local government is vested in the House of Assembly. The additional requirement that the newly created council should listed in the constitution is an abnormality. It is an affront on the federal principle. It is akin to asking the Federal Government, which exercises sweeping powers over the “Exclusive Items” in the constitution, to at the same time appropriate a portion of the “Residual Powers” of the state. The supporters of the approach fail to acknowledge that local government is an extension of the states created for ease of administration at the grassroots. If the House of Assembly creates a local government, should it be excluded from the constitutional mechanism for financial control, management and discipline?
The meaning of restructuring is not beyond the ken and comprehension of the Senate. The Senate may also not be under any influence to jettison or reject the clamour. The Upper Chamber has just refused to make history by not taking a bold and novel step towards the remaking of Nigeria. While a comprehensive constitutional review cannot be undertaken by the Senate within a short time, mere endorsement of devolution, even without reflecting it in the amendment, would have conveyed the impression that the lawmakers are on the same page with Nigerians.
Does the struggle for restructuring lacks justification? A legal luminary, Kola Awodein (SAN), in a paper titled: “Restructuring and Constitutional Review,” said restructuring presupposes the existence of a structure, which is built on a faulty platform or foundation that then requires to be rebuilt or rearranged. Therefore, instead of building of the defective 1999 Constitution, a concerted effort should have been made by the parliament to critically look at the document and amend the provisions that tend to retard federalism.
Awodein listed fundamental issues central to restructuring, and hence, the preservation of unity and corporate existence of Nigeria. The issues should be the focus of any constitution review. They include the secularity of the state, return to federalism as embodied in the 1960 Constitution, marginalization and rotation of the presidency, ethnicity and need for mutual co-existence, abolition of the Land Use Act and abolition of the Petroleum Act.
Others are the adoption of the six zone structure, reforms of the electoral laws and the civil service, fiscal federalism, the structure of the federation, scope and limits of the powers of the central government, proportional representation in governance, the police, the strucOn state police, Awodein said: “A united central police organisation is still in place, making serious and effective policing difficult and almost impossible. The chain of control in the Nigeria Police of today is too long and remote from the centre of operation, weakening discipline and resulting in an ineffective law enforcement process.
“Centralisation and unification have also resulted in significant delay in the administration of criminal justice. The police is overburdened as it is responsible for enforcing all federal, state and local government laws and regulations. This is in addition to its responsibility of investigating cases, prosecuting offenders and controlling traffic and other doing other welfare services.”
Between 1951 and 1960, the three regions existed as semi-autonomous entities in an atmosphere of ‘true’ federalism. They were competitive centres of development, which looked inward and developed at their own pace and based on the judicious use of resources. That competitive spirit was killed by the introduction of the unitary spirit and collective dependence on oil for survival.
Reflecting on the emasculation of the federal principle, an eminent jurist, the late Justice Kayoed Eso, reasoned that “over-centralisation of power invariably stifles local initiative, promotes inefficiency and a sense of over-dependence on the central government.” He queried: “What has happened to the resources which the government the three regions depended upon to fund their respective economic and infrastructural development programmes before the advent of oil?”
In their quest for restructuring, the only route left is to intensify the convocation of a Sovereign National Conference (SNC). As Prof. Ben Nwabueze (SAN) argued: “The power of the sovereign people of Nigeria to make a constitution cannot have been taken away by the provisions in the 1999 Constitution for constitutional amendment. The mandate conferred on the president and members of the National Assembly by their election is only a mandate to govern under and in accordance with the provisions of that constitution, and to make, as may be necessary, such changes in them not affecting the fundamental structures and principles of the system of government established by the constitution.
“It is a limited mandate, and is not meant to substitute the government for the people as the repository of constituent power. The constitutional amendment provisions should not be read without regard to the limitation implied by the universally accepted convention underlying them.”
The National Assembly may be the major beneficiary of the intended amendment. For example, senators are pushing for a law that will make the president lose the power to assent to the amendment. If the amendment scales through, the legislature will have sweeping powers to alter the constitution. In its bid to escape the searchlight, the lawmakers are also thirsty for immunity. Besides, they want former Senate Presidents, House of Representatives Speakers and their deputies included in the Council of State. Although, the Federal Capital Territory (FCT) is to be perceived as the symbol of unity, non-indigenes should forfeit the right to serve as its minister. The Independent National Electoral Commission (INEC), which is struggling to cope with the conduct of general elections, is to be saddled with the additional workload. If the Senate has its way, the national umpire should be conducting elections in 776 local governments.
Although, other items in the proposed amendment-the time frame for budget presentation, the separation of the offices of Federal Attorney-General and Minister of Justice, and the Accountant-General of the Federation from the Accountant-General of Federal Government-are laudable, the motivation for dumping the most important item is unknown. The rejection of power devolution has far-reaching implications for the polity. The structural imbalance is inadvertently sustained. The skewed power distribution between the distant power-loaded centre and pauperised states will continue unabated. The centre will remain attractive to competing political blocs in their stiff competition for power and abundant, yet elusive federal resources. The centre may remain unproductive; it will continue to hold the chunk of the money, but unable to perform corresponding responsibilities. The Land Use Act is left intact.
Also, security may continue to be at a low ebb. Lack of devolution means that state or community police will remain a dream. Governors who are chief security officers of their states will continue to depend on the Inspector-General’s orders to maintain law, order and peace. The crisis of distribution may linger in the absence of a satisfying formula for national creation and distribution. This may be infuriating to champions of resource control and derivation principle. Thus, the on-going constitution amendment may not inspire a new national spirit among Nigerians who are disillusioned with the boring social order. Neither can the amendment proposals they voted avert disintegration.
The disposition of the senators underscore their tacit endorsement of the unitarist legacies of the military regimes, which their civilian successors have failed to alter in the last 18 years. It may fuel a renewed clamour for a Sovereign National Conference (SNC) where representatives of the various nations constituting Nigeria will discuss the basis for peaceful co-existence.
However, the Senate’s position is not final, even for now. To amend the flawed constitution, two-third of the 36 Houses of Assembly must vote in its support. The envisaged “legislative referendum” may become the albatross of the entire exercise. It is doubtful, if the amendment will pass the test at the state Assemblies. What the tone of the debate on the floor of the hallowed chamber suggested was that the majority of senators voted without wide consultations with their constituencies. There is shortage of courage to embark of fundamental constitutional reforms. Obviously, there is a deep gulf between the elected representatives and the electorate. When the majority of constituents are clamouring for the redress of the injustice of lopsided federalism and their representatives are facing the opposite direction, their behaviours smack of failure of representation.
In a fit of irony, the senators rooted for autonomy for Houses of Assembly and local governments. The move may spark a fresh row. While financial independence is desirable for the legislative arm at the state level, the proposed autonomy for the local council is a subject of controversy. Under the constitution, the power to create and dissolve the local government is vested in the House of Assembly. The additional requirement that the newly created council should listed in the constitution is an abnormality. It is an affront on the federal principle. It is akin to asking the Federal Government, which exercises sweeping powers over the “Exclusive Items” in the constitution, to at the same time appropriate a portion of the “Residual Powers” of the state. The supporters of the approach fail to acknowledge that local government is an extension of the states created for ease of administration at the grassroots. If the House of Assembly creates a local government, should it be excluded from the constitutional mechanism for financial control, management and discipline?
The meaning of restructuring is not beyond the ken and comprehension of the Senate. The Senate may also not be under any influence to jettison or reject the clamour. The Upper Chamber has just refused to make history by not taking a bold and novel step towards the remaking of Nigeria. While a comprehensive constitutional review cannot be undertaken by the Senate within a short time, mere endorsement of devolution, even without reflecting it in the amendment, would have conveyed the impression that the lawmakers are on the same page with Nigerians.
Does the struggle for restructuring lacks justification? A legal luminary, Kola Awodein (SAN), in a paper titled: “Restructuring and Constitutional Review,” said restructuring presupposes the existence of a structure, which is built on a faulty platform or foundation that then requires to be rebuilt or rearranged. Therefore, instead of building of the defective 1999 Constitution, a concerted effort should have been made by the parliament to critically look at the document and amend the provisions that tend to retard federalism.
Awodein listed fundamental issues central to restructuring, and hence, the preservation of unity and corporate existence of Nigeria. The issues should be the focus of any constitution review. They include the secularity of the state, return to federalism as embodied in the 1960 Constitution, marginalization and rotation of the presidency, ethnicity and need for mutual co-existence, abolition of the Land Use Act and abolition of the Petroleum Act.
Others are the adoption of the six zone structure, reforms of the electoral laws and the civil service, fiscal federalism, the structure of the federation, scope and limits of the powers of the central government, proportional representation in governance, the police, the strucOn state police, Awodein said: “A united central police organisation is still in place, making serious and effective policing difficult and almost impossible. The chain of control in the Nigeria Police of today is too long and remote from the centre of operation, weakening discipline and resulting in an ineffective law enforcement process.
“Centralisation and unification have also resulted in significant delay in the administration of criminal justice. The police is overburdened as it is responsible for enforcing all federal, state and local government laws and regulations. This is in addition to its responsibility of investigating cases, prosecuting offenders and controlling traffic and other doing other welfare services.”
Between 1951 and 1960, the three regions existed as semi-autonomous entities in an atmosphere of ‘true’ federalism. They were competitive centres of development, which looked inward and developed at their own pace and based on the judicious use of resources. That competitive spirit was killed by the introduction of the unitary spirit and collective dependence on oil for survival.
Reflecting on the emasculation of the federal principle, an eminent jurist, the late Justice Kayoed Eso, reasoned that “over-centralisation of power invariably stifles local initiative, promotes inefficiency and a sense of over-dependence on the central government.” He queried: “What has happened to the resources which the government the three regions depended upon to fund their respective economic and infrastructural development programmes before the advent of oil?”
In their quest for restructuring, the only route left is to intensify the convocation of a Sovereign National Conference (SNC). As Prof. Ben Nwabueze (SAN) argued: “The power of the sovereign people of Nigeria to make a constitution cannot have been taken away by the provisions in the 1999 Constitution for constitutional amendment. The mandate conferred on the president and members of the National Assembly by their election is only a mandate to govern under and in accordance with the provisions of that constitution, and to make, as may be necessary, such changes in them not affecting the fundamental structures and principles of the system of government established by the constitution.
“It is a limited mandate, and is not meant to substitute the government for the people as the repository of constituent power. The constitutional amendment provisions should not be read without regard to the limitation implied by the universally accepted convention underlying them.”
Source: The Nation