.

        A constitution is formulated by the people and or their delegates. The people of Nigeria, and or their representatives did not write the so-called (1999) constitution. This so-called constitution was imposed on Nigerians by a military junta.

       In addition to the problematic manner in which this so-called constitution came into being is the fact that it appears to have been written by third rate lawyers who do not seem to know the difference between constitution (al law) and other types of law. There are significant differences between the various types of law.

      Constitutional law is supposed to provide broad outlines on how a polity (country) is to be governed. It is supposed to outline the powers the people delegate to their government, and within those state who has what power; specify legislative powers and who has them; specify executive powers and who has them; specify judicial powers and who exercises them; and, finally, specify powers granted to the center and those granted to the periphery (states, local governments etc).  If done properly, a constitution can be written in twenty five or less pages.

        Constitutional law is not supposed to be detailed and specific, for if it is specific and detailed it follows that as conditions change and new situations arise the specifics of the constitution may not apply to them. A highly specific constitution quickly becomes obsolete and a country would have to be writing new constitutions every few decades.

      On the other hand, if a constitution is broad and vague its articles (clauses) could be interpreted to suit changing situations hence such a constitution could last for centuries. An example of a well written and less specific constitution is the United States of America. The US constitution is less than twenty pages long; it provides broad outlines of the powers of the various branches of government, and denotes who exercises those powers. The United States Constitution has lasted over two centuries and could probably last many more centuries; it is continually reinterpreted to adapt to changed conditions in the American polity. This is how constitutions ought to be written.

        Statutory law is law made by legislatures. Relative to constitutional law, statutory laws tend to be broader but not too specific. A good statutory law assumes future changes in the land and leaves room for bureaucrats to continually write changed regulations based on the broad provisions of statutory laws.   For example, a good statutory law states something like this: “the government would provide all children of elementary, secondary and university ages with free education”. Within this broad statement the ministry of education or whoever implements the polity’s educational policies, plans and delivers appropriate education to young persons, and changes the manner in which that education is delivered as conditions change. In the past, for example, what was considered good education was the classics (Latin, Greek, history, Literature, philosophy etc), but, today, most people agree that the best form of education is one that emphasizes the physical sciences (physics, chemistry, biology and mathematics). The ministry of education, therefore, makes necessary changes in the nature of education to suit changes in the country’s needs. On the other hand, if what education is, and how it is delivered, is specified it follows that as conditions change the ministry of education would be handicapped in performing its function of delivering quality education to the people.

    The writers of the 1999 Nigerian constitution, as it were, conflated constitutional law, statutory law, regulatory law, administrative law etc into what they called a constitution. What they wrote is not a constitution, as we understand a constitution to be, but an attempt to write every kind of law in one form of law. In doing so they presented the country with an unworkable boondoggle and lawyers’ paradise.

        People are bogged down on what the constitution said on this or that issue rather than look to statutory and other forms of laws for guidance on those issues. 

        The 1999 constriction is almost two hundred pages long. Who on earth could read and understand all of it and have it at his finger tips, as should be the case for every citizen of a polity? Only lawyers could possible understand this so-called constitution. In a polity where only lawyers understand the constitution you can predict that they would pull wool over the people’s eyes.

        (I know would be attorneys, mostly engineers and medical doctors, who, apparently, know very little about politics, pretending to interpret the constitution, and at every juncture fling what a specific part of the constitution says at your face. For example, recently, when the Senate indicated its displeasure with the Obasanjo administration giving Bakassi to Cameroons, some of these would be constitutional lawyers told us what the constitution said about Nigeria’s foreign policy. One asked: what business does the constitution have writing about foreign policies? Foreign policies are the purview of the current administration not constitutional law. International situations do change making different foreign policies necessary.  For example, a situation may call for war and a country attacks another country, but if the constitution states that the country should only go to war when it is attacked it makes the country a sitting duck to be destroyed by aggressive countries. Sometimes, preemptive wars are necessary for the national interest of a country. Given the pontification of our engineer and medical doctor friends one asked: since when are engineers and medical doctors, those who because of their education in fields where two plus two is four, by and large, tend to approach reality from black and white perspective, and seldom make good leaders of men? Good statesmen make choices based on understanding of human nature, human behavior, nations and nations’ behaviors.)

       It seems that those who wrote the 1999 constitution are novices trying to show how thorough they could be. They were probably in above their heads and the constitution they wrote and foisted on Nigerians seem unworkable.

       The 1999 constitution must be scrapped. The reasons for doing so include the fact that it was not written by the representatives of Nigerians, and that what the framers of that constitution framed is a jumble of the various types of law.

        Nigeria ought to call for a constitutional conference; she ought to have each ethnic group elect one or two persons and have them come to Abuja (and get locked in a room) and in a few months deliver a draft constitution to the nation. That draft constriction ought to be voted on by all Nigerians of voting age, and if the majority approves it becomes the country’s constitution.

       Pronaco has made gestures in this regard. (In the past, I submitted a draft constitution to the various constitution conferences; Pronaco’s draft constitution elaborated on my less than twenty pages submissions.)

       The ensuing Nigerian constitution should not be more than twenty five pages long. It should be packaged into a booklet and a copy given to every Nigerian. Every Nigerian should carry it in his breast pocket and use its provisions to judge what his government does.

         Law is a broad subject and there are many perspectives to it. One of the perspectives to law is called natural law. Here, individuals believe that there is such a thing as the law of nature or the law of God. They believe that such natural law is self evident and that no man has a right to abrogate it. For example, human beings desire to live. There seems a force in us that propel us to desire to live at all costs. Only the sick (depressed) desire to die and or kill themselves. Normal human beings want to live and live for as long as they could (the human life span at this time seems to be one hundred and twenty years). Given this desire to live it is assumed that no one has a right to kill another human being (or even himself.). Advocates of natural law argue that it is unnatural to kill another human being, including killing unborn children, as in abortions. They believe that God or nature dictates that people live and that no human being has a right to kill them. To the advocates of natural law, nature and or God is the arbiter of what constitutes law. To them, God said that something ought to be done in a certain manner and so it must be done.

         The problem with natural law, as is readily evident, is that many of us have not heard God speak to us. What religionists tell us that God said that we should do, some persons suspect, are their opinions, opinions that they attribute to what they call God. Indeed, to some persons, atheists, for example, God does not exist. Therefore, it is not easy to ascertain what constitutes natural law.

       Logical positivists (empiricists) insist that only human behavior, as ascertained by all of us, in the empirical world, should be the determiner of right and wrong. For example, we all do see some human beings kill other human beings. We can argue as to why they killed but the empirical fact is that some people do kill other people. In as much as we want to live, based on our empirical (positive) observation of human nature and human behavior, history, it seems in our best interests to pass laws making murder a punishable crime. If we arrest, try and punish murderers the chances are that we protect ourselves. Punishment seems to deter criminal behavior.  This is positive law; law based on empirical understanding of human behavior and law that is pragmatic in that it attempts to protect people.  Positive law is not based on nature or God but on our human experience of what we can do to each other, our predictable harmful behaviors, and our desire to protect ourselves.

        In as much as it is us who made positive laws, we can unmake them, and change them as our experience and behaviors change. On the other hand, if law is attributed to God then it becomes difficult to change it (until a self proclaimed messenger of God tells us to change it).

        Much of what is called law in the Western world is positive law (believers in natural law are on the fringe, such as Christian fundamentalists who oppose abortion on natural law grounds. In Muslim countries law based on Sharia is natural law, not positive law)

         In the English tradition is what is called common law. If you recall, in 1066 William the conqueror and his Norman French men conquered England at the battle of Hastings. Subsequently, the Norman French ruled England with French law. The French King and his lords (Plantagenet) sent their judges through out England to hear and decide on cases. Over time the rulings of these judges became a body of precedents that other judges refer to in ruling on what is the law.

       Additionally, England does not have a written constitution; she, by and large, judges cases based on precedents set by prior judges. Of course, Parliament does pass statuary laws.

      In France and much of continental Europe, the legal system is codified. (This is variously called Roman law, Napoleonic law etc). The French has codified law for every thing and judges apply those to legal issues of the present. French governments, of course, make changes to the earlier Romano-Napoleonic codes and bring them to date.

        For our present purposes, in much of Europe, judges’ rule based on their countries law codes; in the Anglo Saxon countries ( Britain, USA, Canada, Australia, New Zealand, South Africa) judges have the freedom to look at precedents, how other judges ruled on similar cases.

         There are other forms of laws. I have referred to laws written by the people as constitutional law, talked about laws made by legislatures as statutory law, or ordinances if made by city councils. There are laws for how ships conduct themselves on the high seas (maritime law or admiralty law…such laws stipulate how many miles a country’s territory abuts into the sea: three, twelve or two hundred miles?), how airplanes conduct themselves in the air.  There are regulatory laws made by government agencies specifying how those operating within their purview ought to behave (if you operate a radio station you must abide by the regulations of the agency regulating the usage of the airwaves, agencies that licensed you). There are administrative laws regarding what government agencies do and how aggrieved citizens can challenge them and come to administrative courts and their judges for redress.

     There are such things as criminal law, torts (civil law), business law (contracts), family law, equity law (here, before a crime is committed, you seek legal protection, such as seek and obtain a retraining order against some one coming to your residence; which does not make that person guilty of any thing but makes him guilty if he breaks the stipulations of the retraining order).

       My goal is not to dwell on specific laws; you can always go to law school and take courses on specific areas of law.  The point I want to make is that constitutional law is different from other types of law and that the writers of the Nigerian constitution ought to have limited themselves to what is generally accepted as constitutional law rather than redact all the various types of law into their idea of constitutional law.  They made a mistake and we must correct their mistake.

      We correct their mistake by calling for a constitution framing conference at which Nigerians frame a realistic positive law that governs their polity.

      A realistic Nigerian constitution accepts the realities on the Nigerian ground, particularly the fact that the country is composed of many ethnic groups and that each of these groups does not want to be lorded by others. Each Ethnic group must have some room to be itself. A Federation where each ethnic group is a state seems realistic: Hausa State, Yoruba State, Alaigbo State (from Arochukwu to Ida, from Ugwu-ocha to Agbo) , Ijaw State, Efik State, Tivi State, Edo State, and the smaller ethnic groups lumped  into additional States, for a total of no more than fifteen states. Additionally, the constitution delineates the roles of the central government and state governments.  

        All of us know that extant African countries were put together by Europeans to serve their European interests. Ethnic groups were not consulted as to whether they wanted to be part of these countries but, instead, were arbitrarily and summarily thrown together to form artificial countries. Clearly, these nations have to be reconfigured to serve African interests. One way to do so is to make each ethnic group semi autonomous but within the context of real federalism, a federation where power is shared by the center and the periphery.

      Whereas, at the present, we are talking about restructuring Nigeria, ultimately, all Africa must be restructured so that we would have about five hundred states (the approximate number of large ethnic groups in Africa) in what I putatively call Africa Federation. Failure to restructure Africa along these realistic lines shows Africans inability to do the right things. So far, it seems that Africans are cursed and do not seem able to do the right thing. This apparent inability to govern themselves must stop. Africans must embark on doing those things which would bring about their eventual political and economic development. We can no longer afford to put restructuring Africa on the back burner, pretending that our key problem, ethnic divisions, is not there. Ostriches hide their heads in sand but the problems they are trying to avoid are always there, making a mess of living for them. Problems do not go away until they are solved.

     In sum, Nigeria’s 1999 Constitution is not only illegal (because it was not made by Nigerians) it is too detailed; it is a lawyers delight. Not all Citizens are lawyers; citizens ought to have a constitution (document) of a few pages that each of them can read and understand without consulting lawyers on what the constitution said. Those who rely on lawyers to tell them what their basic law stipulates rely on clever rogues and must be misgoverned. If in doubt see what the devil has made, contemporary Nigeria.

Ozodi Thomas Osuji

November 30, 2007

ozodiosuji@gmail.com

Robot  Villager

# 1 This article argues that the current Nigerian constitution has several problems, including the fact ...Read the full article. Posted by Robot| 30.11.2007 07:30

denker  Villager

# 2 Osuji, my dear, thanks for dis writeup..i love its simplicity,...is well thought out! Whereas, at the present, we are talking about restructuring Nigeria, ultimately, all Africa must be restructured so that we would have about five hundred states (the approximate number of large ethnic groups in Africa) in what I putatively call Africa Federation. Failure to restructure Africa along these realistic lines shows Africans inability to do the right things. So far, it seems that Africans are cursed and do not seem able to do the right thing. ...not dat nigerians do not know what is right to do or are lacking in cognitive thoughts rather i see willingness to unnecessarily complicating their lifes... one may ask, why? i do not know...?:confused1, but one thing i know for sure is dat nigerians are no fools. we all know with the momentary structure on the ground, nigeria'll continue to fail -in short, africa as a whole'll continue to fail. :confused1..ask me if a girl gets hymen in her Rectum...? Posted by denker| 30.11.2007 10:27

Amy  Villager

# 3 =denker;4294968243>we all know with the momentary structure on the ground, nigeria'll continue to fail -in short, africa as a whole'll continue to fail. Very depressing perspective...:frown::neutral::confused: Posted by Amy| 30.11.2007 10:34

denker  Villager

# 4 =Amy;4294968250>Very depressing perspective...:frown::neutral::confused: ...yes, quite a very depressing perspective, indeed! i do not see how we can progress with the present structure on the ground -just my logical conclusion! Posted by denker| 30.11.2007 10:45

tonsoyo  Villager

# 5 Osuji, This is a very good article, the focus is most desirable. I totally concure with you that the Nigerian Constitution have been mischievously rigged with "escape route" landmines by the drafters. I also agree with you that the Constitution make unnecessary voyage into the areas of law that should have been left to statutory law making process. I believe this was deliberate rather than out of ignorance. The sponsors of this Constitution are desperate enough to include certain things in the Constitution so as to leave no one in doubt as to what they want done, they are also afraid to leave such mischief to the fate of statutory law interpretation. They made what should have been matter for statutory laws a constitutional issue to ensure its superiority over any other laws that may seek to modify those mischiefs. Whoever I kind of disagree on the unworkability of the Constitution. Our Constitution, just like most other written documents meant to guide the affairs of men is imperfect, due to social dynamics. There is no way drafters can envisage every possible scenario that may emerge in the future. The working of a Constitution depends more on the operator than the document itself. The Americam Constitution has witnessed only 27 Amendments in our two centuries and it has been perfectly worked out through so many changes in the affairs of men. As bad as our Constitution is, I believe it is still workable, with some amendments if the operators are sincere. With our present attitude, no matter how many times we re-write our Constitution, it will still not be workable, even if the current one is scrapped, except my people are ready to make it work, by simply respecting the rule of law. Not by Aondoakaa definition though. PS: From the bottom of my heart, please always try not to make your articles unnecessarily verbose. It discourages people from reading them. You could have conveyed your above in about two-third to three-quarter of the space actually used. Some of the explanations of different kind of laws was unnecessary to the thrust of the article. Posted by tonsoyo| 30.11.2007 11:04