Constitutional amendments and the ghost of ‘restructuring’

BY OLALEKAN ADIGUN

Nations’ constitutions are fundamental aspects of their political processes and democratic existence. Many modern states have devoted a considerable amount of time and resources to their constitutional developments. This is because constitutions are products of a nation’s socio-political development. While there are no perfect constitutions, there are only those that bend and blend. The Japanese constitution, for instance, was written by US general, Douglas MacArthur, after the victory of the allied forces in World War II (in 1947). Also, the US constitution is over two centuries old. The Mexican constitution dates back to 1917. What has made them survive great wars, revolutions, and upheavals is their ability to bend and blend with the times.

Any constitution, no matter how perfectly written, will break and cause more complicated problems than it was meant to solve if it cannot blend or bend with the times. We saw this with the case of the Republic of Cyprus, which, like Nigeria, gained independence from Great Britain in 1960, but immediately faced a series of crises resulting in internal disorder, ethnoreligious polarization, and near-state collapse. The search for workable and “more perfect” constitutions, especially in Nigeria, continues till today!

The 9th national assembly has proposed amending 68 items in the 1999 constitution, and these seem to make a lot of sense. Let’s recall that by early 2017, the word “restructuring” had become well-established in Nigeria as a political concept, generating considerable debates in the public space. A day hardly passes by without the media without the mention of words like “devolution of powers”, “true federalism”, etc. used interchangeably with “restructuring”. My problem is not with the use of the word “restructuring”, but the fact that it means too many things and nothing at the same time.

Not surprisingly, “restructuring” soon became the opposition party’s 2019 campaign theme. This, in itself, is not bad. Everyone in Nigeria knows that the 1999 constitution is not perfect, like any other. At least, everyone seems to agree that the constitution should devolve more powers to the states and local administrations. But, does “devolution of powers” mean “restructuring”?

When the call for “restructuring” became too frequent, the Evangelical Church Winning All (ECWA), English section, Mushin, Lagos, invited me to be their resource person on Sunday, October 1, 2017, for their Independence Day program themed ‘The Unity of Our Nation’. I spoke about issues surrounding Nigerian constitutional development and evolution. I also spoke about the challenges of nation-building in pluralistic societies like Nigeria, using the experience of Tanzania, which is a successful union of two previously independent countries – Tanganyika and Zanzibar.

After my presentation, I sat among a panel of discussants when one of them said his solution to Nigeria’s numerous socio-politico-economic challenges is “restructuring”. This man, a church elder, when asked by a member of the audience what he meant, the answer he gave suggests he meant devolution of powers but ended his reply by saying: “To Nigeria’s problem, I propose restructuring”. I left the programme wondering what the much-touted restructuring meant. I guess it’s because of my background in political science, which made me understand what “devolution of powers” meant and what got me more confused.

Taking a look at the 68 items slated for amendment, 46 were passed, including: financial autonomy for local governments; administrative autonomy for local governments; exclusion of the period of intervening events in the computation of time for determining pre-election petitions, election petitions and appeals therefrom; the expansion of the interpretation of judicial office to include courts or tribunals created by an act of the national assembly or a state house of assembly; fair hearing in the process of recommendation of removal of judicial officers by the State Judicial Service Commission; moving of airports from exclusive legislative list to the concurrent legislative list; moving fingerprints, identification and criminal records from the exclusive legislative list to the concurrent legislative list; removal of prisons in the exclusive legislative list and re-designate it as correctional services in the concurrent legislative list; moving of railway from the exclusive legislative list to concurrent legislative list; allowing states to generate, transmit and distribute electricity in areas covered by the national grid, independent candidacy; free, compulsory and basic education; and food security, etc. by the Nigeria’s federal legislature. Most of the issues were centered on the devolution of powers.

The problem with the earlier advocates of “restructuring” is their unanimous belief that it would take President Muhammadu Buhari alone to restructure the country. Most of them tend to forget that, as a nation, we left the military era over two decades ago. President Buhari signed executive order No. 00-10 of 2020, officially known as the “Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020” to enforce the financial autonomy of the legislature and the judiciary at the state level. This forms the nucleus of the demands for “restructuring” because it gives room for more viable subnational governments and reduces the burdens of the federal government. Understandably, state governors were not comfortable with the development when they headed to the supreme court. The supreme court would later declare the president’s good intentions unconstitutional. This shows the limits of what the president can unilaterally do. However, while the actions of the governors are expected, what came as a surprise are those earlier vociferous advocates of restructuring, including Sam Amadi (former chairman of the Nigerian Electricity Regulatory Commission, NERC), who wanted Buhari to unilaterally “restructure Nigeria” like it was during the military era, suddenly started realizing that his actions to devolve more powers would be “dangerous to constitutional democracy”. It is normal for some people to be horrified by change!

The national assembly’s waking up to its constitutional and historical responsibility of amending the 1999 constitution shows we are making some progress. Many people do not realize that there used to be no “term limits” for presidents in the US constitution. Many before President Franklin D. Roosevelt simply followed an unwritten tradition of serving for two terms. In 1940, President Roosevelt won an election to serve a third term, and there was no legal basis to stop him from either running or winning at the polls. Some argue that World War II in Europe made him run for a third term in office. Four years later, he won again – for a fourth term. Unfortunately, Roosevelt died of a cerebral hemorrhage in April 1945, just months after the start of his fourth term. This provided an opportunity for the US congress to commence the 22nd amendment, which was completed in 1951. The amendment made provision for a person to only be elected to be president for a maximum of two terms of four years each. If congress had not taken it upon itself to include term limits for chief executives, I’m not sure any president would have initiated that!

Now that the 9th NASS has taken these historic steps in our political evolution, it is now up to the rest of us to put pressure on the state houses of assembly to rise above the fray and put their stamps of approval on our quest for a better country. This will also test the resolve and sincerity of those clamoring for “restructuring”. We can never have a perfect constitution, but we can have one that can blend or bend with the times. Constitutions are products of political evolution. So should ours!

As a postscript, NASS members should rethink their rejection of affirmative action provisions for women. Reserving some seats for women will go a long way in our quest for gender inclusion.

Adigun, an accidental writer, sent this piece from Lagos. His Twitter handle is @MrLekanAdigun. His email address is [email protected]