MY CONVICTION ON THE CONSTITUTIONAL AMENDMENT 2020 -Kayode Ajulo, PhD  

MY CONVICTION ON THE CONSTITUTIONAL AMENDMENT 2020
-Kayode Ajulo, PhD

1) On the current agitations and complaints of marginalization across the country, the areas in the constitution to be considered necessary for amendment

The decision of the Senate to inaugurate a committee on the amendment of the 1999 Constitution is quite commendable. In the light of re-current constitutional crises, the amendment of the Constitution is imperative and pungent. I am more excited that a senior learned colleague, the Deputy Senate President, Senator Ovie Omo-Agege has been saddled to lead the pack in this respect. He’s forward thinking, progressive and pro-people, who will give premium to the agitation and aspiration of the Nigerian populace.

The National Assembly has been empowered pursuant to the provisions of Section 9 of the 1999 Constitution to alter any of the provisions of the Constitution. It suffices to also add that the 1999 Constitution of the Federal Republic of Nigeria has been amended for 4 consecutive terms, we should not look at the number of time but how we’ve been able to evolve the constitution to stabilize our democracy and polity.

It should be noted that Nigeria is a country with more than 250 ethnic groups and with an estimated population of about 170,123,740, according to the 2006 census which makes it by far to be the most populated country in the whole of Africa.

Consequently, under this arrangement, the level of interaction between individual ethnic groups, cultures, traditions, religions from different backgrounds has translated into ethnic and political misunderstanding, mistrust, dominations, conflicts and crises as one may not be considerate with one another. As a result, there are fears, suspicions, intolerance, grieves and greed domination among most communities in the country and especially in the North which has so many ethnic minorities.

The principle of ‘Federal Character’ has been largely recognised by the 1999 Constitution. Chapter two of the Constitution is dedicated to fundamental objectives and directive principles of state policy.

With specific reference to section 14(1)(c) of the Constitution, the section provides that the participation by the people in their government shall be ensured in accordance with the provisions of the Constitution.
Section 14(3) provides that:

“The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that Government or in any of its agencies”

Varying sections such as section 15 to section 24 give deference and credence to the need for all-inclusiveness in the running of the government at the Federal, State and Local Government Levels respectively.

Sadly, the provisions of Chapter 2 of the 1999 Constitution have been rendered non-justiciable and invariably a ‘toothless-dog’ by the provision of section 6(6)(c) of the same Constitution which provides that:

“The judicial powers vested in accordance with the foregoing provisions of this section –
Shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any law or any judicial decision is in conformity with the Fundamental objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.”

It should be emphasized that under the Exclusive Legislative List, Item 60(a) is one of the items that the National Assembly is vested with legislative power. Putting the position nakedly, by Item 60(a), the National Assembly is empowered to establish and regulate authorities “to promote and enforce the observance of the provisions of Chapter 2 of the Constitution “.
A community reading of Item 60(a) and Section 6(6)(c) results in quite a different package, a package which no more leaves Chapter 2 a toothless dog which could only bark but cannot bite. In my view, by the joint reading of the two provisions, Chapter 2 becomes clearly and obviously justiciable. And if I may fall back on Section 6(6)(c) of the Constitution which provided for an exception clause, it is my view that  Section 6(6)(c) anticipates amongst other possible provisions, the provision of Item 60(a) .
Item 60 of the Exclusive Legislative List of the CFRN specifically empowers the National Assembly to establish and regulate authorities for the Federation to promote and enforce the observance of the Fundamental Objectives and Directive Principles, and to prescribe minimum standards of education at all levels, amongst other powers. The breath-taking possibilities created by this provision have sadly been obscured and negated by non-observance.

This is definitely one avenue that could be meaningfully exploited by our legislature to assure the betterment of the lives of the masses of Nigerians, whose hope for survival and development in today’s Nigeria have remained bleak, and is continuously diminishing.

The utilization of this power would ensure the creation of requisite bodies to oversee the needs of the weak and often overlooked and neglected in our society. It would also provide a unique and potent opportunity for our legislators to monitor and regulate the functions of these bodies, where the Executive, for reasons best known to it, fails or neglects to priorities and implement the provisions of Chapter II, and by extension, the welfare of all Nigerians. It is my hope that the next amendment should correct the wrong on the justiciability or otherwise of the Chapter 2 of the Constitution mentioned above, better still, I foresee a situation where the Supreme Court under the dynamism  of our jurisprudence do the needful by ensuring the justiciability of Chapter 2 which guards the fundamental objectives of state principles.

Also, there is at present widespread discontent with the country’s federal structure and arrangements. All the constitutional, political and judicial aspects of the federal system need to be openly discussed. Issues such as revenue allocations from the Federation Account to the three levels of government; the position of local government in the federal system; sharia and customary laws under the Constitution; the power and functions of the National Judicial Council; the principle underlying the growing number of federal courts of first instance within a federal system; the formation and registration of political parties and their constitutional role; the electoral processes; etc. All of these need to be resolved on the basis of a general consensus.

2) The items on the Exclusive list which should be considered suitable for concurrent or Residual list.

Time, I must confess, would not permit me to highlight these items as it is as wide as the Nigeria Federalism, a snippet of what I am proposing could be gleaned from the fact that, globally, federalism is the vogue, even countries that are traditionally Unitary are today in practice of Federalism. Please take a look at the United Kingdom, each constituent has Prime Minister, Met. Police and other regional and municipal police. There are regional autonomous legislative houses.

However, in Nigeria, the scheme of exercise of legislative powers in this country is very much like in all other federations. It is based on legislative lists. Some items on the list are reserved for the exclusive legislative competence of the Federal Government and others for State Governments. A State Government or Authority cannot legislate over a matter on the
Federal exclusive legislative list except empowered so to do by the competent federal authority.

Pursuant to Part 1 of the Second Schedule of the 1999 Constitution, the powers to legislate on the matters relating to Police is the exclusive jurisdiction of the National Assembly. See item 45 of the list. It therefore goes without saying that no state government whatsoever can legislate nor determine the powers of the Nigeria Police. And considering the spate of insecurity in the Country and the recent inauguration of ‘Amotekun’ by the South West states, there is need to remove the issue of policing from the exclusive legislative list to the concurrent.

3. Whether some or any of the resolutions and recommendation of the 2014 National Confab organized by President Goodluck Jonathan should be of assistance to this committee. The aspects of the recommendations will help the committee.

Recall that the National Confab set up by President Goodluck Jonathan made about 620 recommendations on restructuring of the Constitution. The conference touched virtually all aspects of the socio-economic and political challenges besetting the country such as resource control, fiscal federalism, devolution of power, creation of states, forms of government, revenue allocation, ethnic nationalities and minority question, and resolution of the herdsmen and farmers’ crises.

There is no doubt that several confabs have been held in the country whose recommendations are covered with dusts on the shelf. It is opined that there is no need for a new confab, some of the recommendations of the Committee are still very relevant and overripe for implementation.

On the Presidency: The confab recommended that anybody aspiring to become the country’s President must be a degree holder.

Similarly, on the issue of incapacitation of the President, the Committee recommended that where the President dies in office or incapacitated, impeached or where he resigns, the Vice President shall operate in acting capacity for a period of 90 days during which an election to the same office would be conducted. According to the delegates, the decision became imperative against the backdrop that each zone is expected to run the full course of the constitutionally allowed tenure without undue disruption; and it was also agreed that based on the adopted zoning formula, when a president leaves under any of the circumstances stated above, another president would be elected from the same zone where the previous one came from.

Livestock, grazing reserves, ranching: In the long term, the delegates agreed, cattle routes and grazing reserves be phased out to lay emphasis on ranching.

Public Finance/Revenue Allocation: The sharing of the funds to the Federation Account among the three tiers of government should be done in the following manner: Federal Government – 42.5%, State Governments – 35% and Local Governments 22.5% as opposed to the prevailing 52.68 %, 26.72% and 20.60% respectively. It also said that the percentage given to population and equality of states in the existing sharing formula be reduced while that assigned to Social Development sector be increased to a much higher percentage so as to ensure accelerated development of all parts of the country.

Forms of Government: The confab recommended a Modified Presidential System, a home-made model of government that effectively combines the presidential and parliamentary systems of government. The president shall pick the vice president from the Legislature. Cutting cost of governance The President should select not more than 18 ministers from the six geo -political zones and not more than 30% of his ministers from outside the Legislature. Reduce Cost of governance by pruning the number of political appointees and using staff of ministries where necessary.

Removal of Immunity Clause: Immunity Clause The immunity clause should be removed if the offences attract criminal charges to encourage accountability by those managing the economy.

It is however important to point attention to the fact that immunity is a fundamental and innate power of a sovereign which right is inalienable whether it is in the papers or not.  Personally, I must say that removing immunity is quite laughable and palpable: what is sovereignty without immunity!

Independent Candidacy: Every Nigerian who meets the specified condition in the Electoral Act should be free to contest elections as an independent candidate.

Anti-corruption: A Special Courts to handle corruption cases should be established in the light of undue prolongation in the trials and prosecution of corruption cases in the regular courts.

4. General advice for the committee in discharging this duty.

Whether it is a Sovereign National Conference, or an elected Constituent Assembly, or any other gathering that is put in place to prepare a new constitution, it is highly desirable that the contents of that constitution should be widely discussed, generally understood and genuinely acceptable to all the communities and ethnic groups as well as all shades of opinion in the country.

It is very important that several million copies of any Draft of the Constitution produced by a Constituent Assembly or a General Conference should be made available to the public throughout Nigeria before it is debated in the State Houses of Assembly. This will enable the people to make their views known to their representatives on specific provisions in the Draft before it is debated in the State Houses of Assembly and the National This will enable the people to make their views known to their representatives on specific provisions in the Draft before it is debated in the State Houses of Assembly and the National Assembly. It will also enable knowledgeable contributions to be made to the debate from individuals who feel concerned about any aspects of the Constitution as well as on the document as a whole

The making of a constitution for the country is so crucial for the social harmony, political stability and general well-being of the nation to deserve the widest possible circulation of the Draft of any constitution. Specifically, I suggest the putting into circulation of several million copies of any such Draft.

In conclusion, I am more fortified by the caliber and debonair of the members of the committee. Senator Ovie Omo-Agege is someone I know personally to be passionate on people and constitutional development. Recall that he first secured his seat at the Senate on the platform of Labour Party when I was the National Secretary of the party. I am quite certain and positive on the outcome of the Committee.

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