CONSTITUTIONAL REFORM AND THE FUTURE OF DEMOCRACY IN NIGERIA
By Professor Akin Oyebode
Paper presented at the Action Congress South West Zone Annual Conference held in Ibadan, Thursday 19-Friday20 March, 2009.
It is perhaps the most redoubtable of tasks to attempt to prognosticate on Nigeria, its romance with democracy, the possibility of actualizing its potential or fulfillment of its promise to the vast collection of humanity that Providence had decreed for its landscape. A country where the worst never happens and the best is never attained, Nigeria has continued to attract the attention of friend and foe alike, wondering how this impossible country always manages to defy doomsday forecasts whilst snatching defeat from the jaws of victory as far as socio-economic and political transformation was concerned.
Even if the portents for the country are generally bad, as a people, Nigerians are famously optimistic. From the elite who seem to have come to terms with the steep learning curve of the political leadership right down to the masses whose refrain is "E go better!" there is a general belief among the people in a greater tomorrow in relation to the nation's fortunes. The few discordant voices are usually dismissed as utopians or anarchists who can never see anything good or promising in the land. Yet, uncomfortable questions would have to be posed if Nigeria is to break the unending cycle of growth without development and motion without movement.
It is against this background, therefore, that we have to interrogate the current hype in the country over constitutional reform and contemplate the future of democracy in Nigeria. 1 It is contended that without getting the basic law right, the road to democratization is apt to be strewn with a lot of imponderables.
More important, the numerous false starts that the country has been treated to in the name of democracy have robbed democracy of its legitimacy in the eyes of some of the people. Before the majority begin to yearn for a return to rule by khaki compatriots, all hands must be on deck to convince them that, as Winston Churchill once observed, democracy was indeed the worst form of government, aside from all the others!
Although nearly every Nigerian political actor professes to be a democrat, only few understand or can explain the democratic concept beyond the hackneyed definition of Abraham Lincoln. Agreed the people lie at the epicenter of the democratic process but that should not make us gloss over the most critical aspect ÔÇô choice. To the extent that democracy is about the right to go to heaven the way people want, to that extent would it be correct to aver that where the atmosphere is inimical to the freedom of the people to choose, no-one can seriously speak of democracy. The appurtenances of democracy ÔÇô separation of powers, adult suffrage, freedom of speech and of the press, equality before the law, an independent judiciary, right of dissent, etc. ÔÇô exist precisely in order to avail the right to choose.
Admittedly, there is a hierarchy of rights such that basic or fundamental rights of life, work, food, clothing, health, education and housing can be considered as antedating other rights like freedom of religion, correspondence or family life. The right to choose one's leader is, perhaps, the most important to a free people. Slaves, as we all know, do not have the freedom of choice, not of the type of work they do or the hours thereof, let alone who is to be their masters. Accordingly, existing rights in a democratic society are aimed at ensuring the sanctity of the ballot-box without which it is difficult, if not impossible to contemplate a free society.
One of the banes of our society lies in the fact that we have been attempting to operate a democratic system without genuine and committed democrats. Many of the country's political leaders are not wedded to the democratic idea and merely try to exploit the promise of democracy for their own ends. More importantly, a country with endemic poverty and crass ignorance is ill-suited to the attainment of democratic ideals. As is widely known, the politics of the stomach have ended up in many mortgaging their future at ridiculously low rates. A situation where poor people sell off their voting rights for peanuts has resulted in the emasculation of democracy and good government. While it might be a chicken or egg situation, the relationship between poverty and democracy is one which needs to be properly grasped if progress is to be made in Nigeria's long march towards democracy. The right not to go to bed hungry must be well situated within the rubric of democratic practice.
The other aspect of the democratic practice is the necessity for a consensus among the political class regarding the desiderata for playing according to the rules. Winners in political contests should be ready to be magnanimous while those who lose should also be gallant losers. Conceding defeat by congratulating winners would go a long way in consolidating the democratic process but that is premised on the existence of a level playing field for the players. Besides, it cannot be said too clearly that the democratic process can do without umpire-players. The more we insist on making poachers gamekeepers, the less credible would the electoral process be. Nigeria's recent experience teaches no other lesson than the imperative of sanitizing the electoral process if the Nigerian experiment of democracy is not to suffer a stillbirth.
In a democratizing world, Nigeria has no option but to fall in line. Not only is the West insisting on a clean bill of health in order to play the role of "development partners" to beleaguered emerging markets such as Nigeria's, it is a matter of worry if not, in fact, embarrassment that less endowed countries in the West African sub-region have demonstrated a good grasp of the modalities of democratic praxis when our country is yet to evince the requisite attitudinal adjustment to make a success of the endeavour.
Constitutions and the Democracy Project
As the basic or fundamental law in the polity, the constitution lays down the ground rules for the exercise of political power as well as inter-personal relations in the society. However, it is important to bear in mind the fact that the constitution does not hang in the sky but is conditioned by political considerations and social reality. As Lenin had observed, the constitution is a mirror of the balance of political forces in a country at a particular point in time. Accordingly, any analysis of a country's constitution not steeped in the socio-political factors which underpin it is apt to be arid and ineffectual.
It also apposite, as H.O. Davies once observed, that the constitution and laws of a country are an expression of the social consciousness of their leaders. Accordingly, the constitution is a barometer of the attitudinal chemistry of the political leadership of a country. Where and when a leadership is sensitive to the needs, goals and aspiration of the people, the constitution would be informed by democratic values and the desiderata of probity, accountability and good governance. On the other hand, a bankrupt ruling or governing class is apt to institute a constitutional framework which is retrogressive, antedulivan, obscurantist and anti-people. A self-centered, self-serving, self-perpetuating and self-opinionated governing elite, more often than not, cherishes a constitutional order which is inimical to the growth and development of the democratic project or expansion of the political space. Thus, the making and operation of the constitutional road map can be advanced or hindered, depending on the proclivity of the powers ÔÇô that ÔÇô be. Where and when venal opportunism is replaced by a sense of commitment to the greatest good of the greatest number, the constitution in place would more likely than not minister to the needs and aspirations of the overwhelming majority of the people rather than the interests of a selfish, microscopic minority.
If democracy is truly about the empowerment of the masses, then the extant constitutional framework should further this objective. From the prevalent constitutional norms and their application, one can quite easily decipher the ideological leitmotif of the society. Since, according to Roberto Unger, law encompasses the secrets of what holds society together, the constitution of a country has a definite nexus with democratic goals and ideals. In other words, whether or not a society can be described as democratic would depend, to a large extent, on the constitution in operation and the extent to which it enables the population to attain social progress as well as self-actualization.
Constitutional Engineering and Democratic Praxis in Nigeria
Nigeria seems ever to be going round and round in circles as far as formulating constitutional modalities is concerned. Admittedly the constitutional history of Nigeria has been encumbered by its colonial past, what with the succession of constitutional arrangements foisted on the country by Britain between 1922 and 1960. Little progress has been made beyond the Clifford, Richards, Lyttleton, Macpherson and Independence constitutions. Yet, local efforts at creating an authochtonous constitution had been coming to grief such that the more things appeared to change, the more they remained the same.
Besides, the long years of intrusion into the country's political space by the military had not helped matters. The Obasanjo constitution, the Babangida Political Bureau rigmarole, Abacha's self-serving constitutional conference, the Abdulsalaam constitution and Obasanjo's abortive third term adventure through the Abuja Confab as well as the current effort to amend and/or re-write the nation's constitution suggest that Nigeria might have to wait a while yet before it can get it right.
It is sad but true that Nigeria has been trying assiduously to practise democracy without genuine, committed democrats. Even if the various constitutions imposed on the country have been bereft of legitimacy, a conscious effort by the political players could well have resulted in the consolidation of the democratic process. The lack of popular approval by way of a referendum or plebiscite notwithstanding, adherence to the prescriptions of the various constitutions would have guaranteed some movement towards democratic values and ideals. Regrettably, in Nigeria, political actors are largely in the game for what they can derive therefrom rather than any genuine commitment to the common cause or service to the fatherland.
Furthermore, it does not appear as if the political class is aware of the well-established process of constitution-making, that is to say, the necessity for convening a constituent assembly to elaborate the basis for co-habitation within the polity, following which the consensus hammered out therefrom is forwarded to a drafting committee whose major task is to reduce decisions into legal form before subjecting the proposals to a national referendum.
It was this elementary point which his critics failed to appreciate when Chief Awolowo declined service on the committee of 50 wisemen in 1977. Putting the cart before the horse was procedurally a non-starter but many people just did not get the essence of Awolowo's position. Now that the nation is once again seized with the arduous task of constitution-making or constitutional reform, the fact needs to be driven home to all concerned so that we do not proceed on a wrong footing.
The Abacha Constitutional Conference of 1994 as well as Obasanjo's National Confab on Constitutional Reform of 2005 both suffered from their undemocratic nature as well as thinly-veiled attempts by the powers ÔÇô that ÔÇô were to influence and manipulate decisions adopted therein. Since the two attempts were self-serving, it came as no surprise that they floundered with ignominy.
On the other hand, despite its cogency, the PRONACO effort was perceived by some as a merely private initiative which lacked enforceability. The patriotism inherent in the PRONACO endeavour was, regrettably, insufficient to transform it into a sovereign national conference as has happened in some African countries, notably Benin, Congo, Mali, and Guinea. Even in those countries, as I have observed elsewhere, the efforts generated more heat than light in terms of providing solutions to the problems of post-colonial Africa.
In sum, Nigeria's previous attempts at constitution-making have not been particularly auspicious. Accordingly, if the nation is to make progress in the effort to formulate or prescribe a constitutional framework, it should be considered a categorical imperative to re-visit past attempts and learn from them. The current ahistorical approach wound have been laughable if it was not so tragic. Maybe this issue deserves closer scrutiny .
The Poverty of Current Efforts at Constitutional Engineering
I believe one should proceed from the assumption that the Nigerian political
class is at a loss as to what is to be done with the present Constitution. There are some who are in favour of a complete overhaul of the document and its replacement with a better crafted and legitimate fundamental law. Some others are prepared to live with mere amendments of certain clauses on the basis that the devil you know is much to be preferred to the angel you are yet to meet.
Nevertheless, what to do with the military-imposed constitution remains one of most urgent issues on the national agenda. While a constitution is not etched in granite and should, therefore, admit of amendment from time to time, the Nigerian experience has moved from the sublime to the ridiculous such that the Obasanjo National Confab was presented with 118 amendment proposals for a document that had been in operation for just 5 years. When this is compared with the experience in older democracies such as the US, the Nigerian example becomes quite clearly farcical. Indeed if a constitution should undergo so many amendments within such a short period, it would seem a better alternative is to formulate an entirely new document.
However, aside from the sheer number of proposed amendments, there has also been considerable hair-splitting over the modalities for convening a constituent assembly or sovereign national conference. Many legislators are irked by the description of such a conference as "sovereign" since, they argue, there just cannot be a bifurcation of sovereignty within a polity, they being the legitimate symbols of national sovereignty as the people's representatives. Those who argue like this conveniently forget the fact that workaday law-making for the peace, order and good government in the country is a far cry from constitution-making. By angling for a role in constitution-making aside from considering particular amendments from time to time, our legislators want to perform a function for which they are least qualified and largely ill-equipped. The idea of the legislature acting in the role of a constituent assembly is not only ahistorical but also dysfunctional and counter-productive.
All over the world, constitution-making is a specialized activity reserved for constituent assemblies as distinct form legislative work which constitutes the forte of the law-makers. Until our legislators grasp this elementary truth, their on-going efforts to write a new constitution for the country are apt to be ineffectual ad unproductive. Every constitution contains an amending formula which is usually stringent in order to ensure stability and constancy through time for the country's basic law.
Accordingly, if all the legislators intend to do is amend the constitution, they are perfectly free to proceed as stipulated under the selfsame constitution. On the other hand, if what is intended is a wholesale re-formulation of the constitution, it is respectfully submitted that that exceeds their brief and the nation should commence immediately the process of convening a constituent assembly to carry out that assignment.
Constitution-making and the Future of Democracy in Nigeria
The present constitution, being irredeemably bad on account of its being the product of a military diktat, lying against itself and embodying numerous centralist provisions while masquerading as a federalist document should be cast into limbo and replaced by a workable one which espouses the principles of true federalism and bears the imprimatur of legitimacy by being subjected to the crucible of a national referendum. The need for new ground rules for the co-habitation of Nigeria's over 400 ethnic groups is self-evident, not to talk of formulating new modalities for inter-personal relations in this longsuffering republic.
The infelicities of the present constitutional order including the disempowerment of state governors, especially in relation to control over the police and maintenance of law and order generally make it necessary and desirable that a new way be tried for the advancement of democracy and good governance in Nigeria. If democracy is about expanding the political space and widening popular empowerment, then the rough edges of the current constitutional dispensation must, as soon as possible, be smoothed over. The lack of faith by the people in the possibilities offered under the present arrangement needs to be cured by putting in place a new constitutional order which embodies the hopes, aims and aspirations of the generality of the country' population. The disconnect between the people and their so-called leaders has to be done away with immediately such that the tenets of probity, accountability and responsible governance are given full rein.
As a minimum, the new constitution should be a product of the will of the various nationalities and ethnic groups which comprise this misbegotten federation. There must be a big family meeting which would hammer out the basis of the exercise of political power and intermediate in the relations of the component units of the country. The needs of fiscal federalism should be met such that the agreed federating units (and not necessarily the present states) have considerable autonomy of decision-making, especially in relation to their God-given natural and human resources. In other words, the Nigerian federation would need to be re-invented such that each and every constituent unit has a sense of belonging and commitment to the survival of the country. The current imbroglio in the Niger Delta is a consequence of the frustration, alienation and feelings of disempowerment felt by the people inhabiting the area. Except, unless and only to the extent that the division of powers prescribed under the present constitution is re-configured, the very survival of Nigeria, not to talk of its democracy could be on the line.
The need to forge a new consensus regarding the destiny of this country is self-evident. The political class must apprehend the imperative for re-discovering Nigeria and re-setting the ground rules for the co-habitation of the multifarious nationalities and ethnic groups that inhabit this vast country. It is quite obvious that things cannot continue as they are. Religious and inter-ethnic conflicts are symptomatic of a failing state. A situation under which efforts at integration via schemes such as the NYSC are being threatened by bigotry, myopia and fanaticism can simply not be tolerated in any country that makes pretensions to advancing the democratic cause.
Admittedly, democratization is not an event but a process which calls for conscientization of the people in order for the process not to be truncated through the activities of anti-democratic forces. The popular consciousness must be attuned towards defending democracy and consolidating on the gains of popular empowerment. If the country is able to secure a legitimate constitution which is sensitive to the spirit of the age and geared towards enhancing enthronement of the popular will, the democratic process would be so much enhanced and the country can truly experience a re-birth and a new beginning. However, it needs to be emphasized that this would not come about without sustained struggle to defeat reactionary, anti-democratic forces who would stop at nothing in a bid to maintain the status quo of discounting the interests of the preponderant majority of the people.
The promise of Nigeria as a well ÔÇô governed democratic polity is self-evident. Given the country's endowments in terms of human and material resources, the country really has no business with poverty and underdevelopment.
Notwithstanding, Nigeria's history is replete with failure and under-achievement in terms of socio-economic and political transformation. Nigerians, by and large, agree that the democratic approach is best suited to the realization of the country's aims and aspirations.
In view of the foregoing, critical decisions need to be taken in the immediate future that would widen the scope of the democratic process through a re-thinking of the constitutional framework. This would entail input by the nationalities and ethnic groups that inhabit the country. Only thus can any proposed constitutional arrangement secure acceptance and legitimacy in the eyes of the people. Once the people are placed in the epicentre of all policy formulation and policy implementation, the prospects of democracy and good governance would be bright and attractive.
- Ake, C., Is Africa Democratising ? 1992 Guardian Lecture.
- Davies, H.O., The Legal and Constitutional Problems of Independence in P. Judd, ed., African Independence (1962).
- Lenin, V.I., How The Socialist Revolutionaries Sum Up The Revolution and How The Revolution Has Summed Them Up, Collected Works, Vol. 15 (1963).
- Oyebode, A., Law and Nation-building in Nigeria (2005).
- Unger, R.M., Law in Modern Society (1976).