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THE PROBLEM WITH
NIGERIA’S CONSTITUTION
Ozodi Thomas Osuji
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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
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Posted by Robot| 30.11.2007 07:30