After state police, nothing else left to demonise Nigeria’s constitution with

Sometimes last month, President Buhari assented to some critical matters of constitutional amendment. Chief of these amendments was that state governments could now establish and run their own railways, that states could now generate, transmit and distribute their own electricity, and that states could now run their own correctional facilities (prisons). One of the 16 amendments also granted autonomy to state legislatures and judiciaries.

Some of these are very contentious issues upon which many commentators had hung the non-performance of Nigeria in her almost 63 years of independence. There are millions who swear that Nigeria’s problem stems from her constitution. They say the constitution is crippling, and fraudulently put together. They complain that the ‘We, the People’, that commenced the constitution is a farce, as the constitution was put together by the military, who did not contact the Nigerian people. It does not matter if the much-vilified 1999 constitution is a mere tweaking of a few sections of the 1979 constitution, which was put together by a properly constituted 1978 Constituent Assembly, and which itself merely tweaked the 1963 constitution. Even with this latest set of amendments, some of these constitutional puritans have insisted that Nigeria simply needs a new constitution and no less. I think I had written in a previous article that many Nigerians suffer from a cognitive bias of always wanting life to be perfect – without necessarily putting in the required work to make it so. This expectation of sudden and immediate perfection may be one of our biggest issues as a people today.

Of course, I disagree with those guys on several other grounds. Firstly, when they complain that the constitution did not incorporate the wishes of the people, they often mean that they were not invited to the conferences at which the constitution was put together. Nigeria simply copied aspects of the United States constitution, especially with the ‘We, the People…’. In the United States too, the drafters of the initial constitution did not seek the opinions of the hoi polloi. They were aristocrats, military generals, landowners and such. Hence, they wrote in that constitution that only landowners could vote. And they had to be men, not women. Blacks were written into the first American constitution as two-thirds of human beings and therefore unworthy of the right to vote. Their numbers were discounted for the south of the USA where they slaved away in the plantations, and it was on their backs that the idea of the Electoral College emanated, to ‘balance’ the votes so that even when human beings expressed their opinions, the will of a few powerful men will have the day. The drafters of that idea believed that there was something called ‘too much democracy’. Imagine if that was Nigeria? This is part of why I urge that we should not rubbish what we have today because despite being problematic in part, it is also better than the best in many areas. Imagine that in 2013 a US Supreme Court reached a decision that has enabled some states to disenfranchise former felons, especially blacks. But in Nigeria, our law is blind to your past. Every former felon, if they wish, is free to vote in Nigeria.

There are no perfect constitutions anywhere. I have been involved in drafting constitutions in the past, and I know that drafters would usually progress from the known to the unknown. But in applying general principles to specific situations, complications usually arise and there will be a need to constantly amend constitutions as these issues and observations arise. Our reference point, the United States, has amended its constitution 27 times and counting. I had proposed in the heat of the calls for restructuring, that the best way to restructure is to insert a clause in the constitution that triggers a review every three or four years, with the betterment of the lot of the majority and the most vulnerable in mind. What the Buhari government has done with these amendments has confirmed my thoughts which I put in an article titled ‘A short history of restructuring in Nigeria’. Also, it is important to note that it is sheer impossibility for everybody’s opinions to count when drafting a constitution. At best, people will have representatives, but only a fraction of what each person desires will make it into the final document.

Let us examine briefly the impact of the key amendments mentioned above. Many Nigerians believe that once we fix electricity the economy will explode. I am not especially optimistic about that prospect as I have not seen the predilection for Nigerians for deep thinking, research and long-term endeavours that transform the face of a nation. But it is nonetheless a remarkable amendment and at least we may see a scenario whereby we will begin to transition to an era of stable or even cheaper electricity, which sidesteps the current inefficiencies, sabotage and corruption that plagues the current over-centralised system. Many people may also find that they can no longer hide under the excuse that they have no electricity to perform their daily jobs. Electricity could be very expensive to generate, transmit and distribute, but it also depends on one’s approach. For sure, up to date, we have approached electricity with an archaic mindset – just as we have so many other sectors in our nation. The production/generation of electricity is no longer as complicated or as arcane as before. Knowledge of everything has improved. I still insist that until we are able to take this responsibility of captive/low-voltage electricity generation to our universities and polytechnics, for them to fill the needs of our rural areas, we shall not have hit jackpot in that sector.

The assigning of railway development to states is also highly welcome and presents another window for us to view the thinking behind these laws that are being amended. What’s the big deal in railways that should be confined to the federal government in the first place? That is on the same level as the thinking that confers electricity that young lads in secondary school can generate to a federal government. The concession to states will therefore help the ambitions of the incoming government of President Bola Tinubu, who runs on a promise to revolutionise the transport sector by ensuring every state in Nigeria develops/invests massively in metro and other systems as part of the process of deregulating the petroleum downstream subsector. These local light-rail systems are to be connected with the national rail system in a way that totally presents a new face and the next phase of our development. It is important to note that the development of the rail sector is critical to the development of nations. The USA in the mid-1800s literally exploded to the West. There was also a trick they employed. Private sector railway developers like Colonel Vanderbilt and Andrew Carnegie were granted land of up to six miles to both sides of their rail for as long as they can continue building the rail lines. This created incentives. Our states and even the federal government may consider this as it engages with private-sector players.

Prisons – now they call them correctional centres – are also another interesting addition to the purview of our states. Now, this is tricky but it can transform society in a significant manner. Our justice system is clogged and many Nigerians who have been sent to correctional centres come out even more hardened given the overcrowding and generally terrible conditions of those centres. What is more? Nigeria is actually almost a lawless society. I let my social media friends know that perhaps every two out of five Nigerians would have a stint in jail in the USA with the way we carry on lawlessly and without a care in the world. And we have started seeing that. We have a former deputy senate president in jail in the UK. We have a bunch of our musicians who have served jail time or are still there presently. We have thousands of Nigerians in jails in the UAE, USA, UK, Europe, China, Thailand, Saudi, Korea, South Africa and many more countries around the world – folks who deliberately disobey the laws and customs of other lands. Our states should understand that there is nothing wrong if they build more correctional centres because perpetual and unrepentant criminals should not walk freely in society. The right examples must be set. And the federal prisons must be decongested. The states could however try different correctional models where inmates could be very productive for society, and where their living conditions do not have to be hellish.

I will leave out the analysis of judicial and legislative independence in our states. The advantages are obvious and I know that this granting of autonomy is painful to many governors who thought they have their judiciaries and legislatures in check and feeding from their palms. This amendment may cause some fireworks in the coming years as the governors learn to tread more carefully.

The remaining 65 odd items in the exclusive list

I went through the long list of items contained in the exclusive list in our constitution. Honestly, there is little else to remove and place in the charge of our states. Precisely, the major item that the states should brace up for now, is self-policing. Our state governors used to sound so strident on this matter until they started seeing how expensive it will be to maintain these guys. Then the noise died down. But with this latest push towards restructuring, they should expect that this is now coming.

Already, every state has the beginnings of state police in Nigeria. The southwest states have the Amotekun, who are also armed to an extent. Southeast states have the Ebubeagu, even though I understand that does not have the enabling laws and is for now overshadowed by activities of the Ipob and Eastern Security Network (ESN). The northeast had the Civilian JTF when they were needed and the northwest have their own vigilantes. The state governors should expect all these guys to transmogrify into their own state police soon, while they sit down with the federal government to know how to map out jurisdictions, hierarchies, reporting lines and cooperation. It is now becoming fait accompli.

I found two more tangential items that could be moved too. First, is roads. It looks like there are too many roads which are considered federal, using the same old thinking mentioned above. Many of the federal trunk roads should be ceded to states. There is no big deal in them.

Also, solid minerals. Again, this is tricky. I believe states should be allowed to own solid minerals, develop and pay taxes to the federal. But this has to be carefully worked out. We also don’t want to foster inequality in our land. So, what to do with states without many solid minerals? And do we dig up everywhere in search of minerals? Will the federal government not lose control and respect entirely? Then how much offshore crude oil and gas should be owned by coastal states? Those are some of the questions that come to mind but I believe that someday in the future, this too can be tackled. The current scenario of awarding oil blocs arbitrarily to the friends of those in power is unacceptable, unscientific, suboptimal, and of course very annoying to many Nigerians.

Overall, Nigeria is moving in the right direction with these recent steps. I think we should complain less and think more. I think that with diligence, given what we have, we can make a lot out of our circumstances. Let me quickly say here that it is a fallacy that in federal systems – like the USA – states only give back to the federal government. That’s untrue. The US federal government gives a lot to the states on a monthly basis, on a needs basis. They have two types of grants – categorical (for specific purposes e.g. education), and block grants (given in bulk to states to do whatever they wish). States like Mississippi, Alabama, New Mexico, and South Carolina get much more than rich states like New York or California. That’s how it works.

The federal government must understand, however, that the more it cedes to the states, the less it is entitled to from the FAAC (Federal Accounts Allocation Committee) funds. The current roughly 52:27:21 sharing formula from federal to the states must have to change in favour of states and local government. The fear is not to make already arrogant governors who rule their states like overlords with even more power. But the next spurt of growth and development in Nigeria must come from the rural areas – which even the governors neglect these days because nothing goes on in most states in Nigeria apart from the state capitals. In my view and past proposals, I wish we could have like 40% of FAAC going to local governments, but in a fund that can be jointly managed by all three tiers of government such as to develop and release the potentials, energy, and productivity laying captured at our rural areas. Some of the advantages of such an initiative will include the following:

1. Larger, more even-spread spatial development in Nigeria
2. Boost in agricultural production and value-add all over Nigeria
3. Less post-harvest wastage and development of cottage industries in rural areas (to add value to agricultural products)
4. Rebuilding and expansion of rural roads and other infrastructure
5. Crash in the rates of urban and general poverty and hunger in Nigeria
6. Improvements in literacy rates, and attainment of higher Human Development Index all over Nigeria
7. Reduction in urban and rural crime rates
8. Reduction in border clashes, and other rural strife – including farmer/herders clash.
9. Boost in domestic consumption of essentials – food, clothing, housing etc
10. A great opportunity for urban and rural renewal – including repositioning of the housing sector, among other advantages.