By S.O. Jaja.
Political and constitutional developments in Nigeria are best understood within a three- dimensional perspective which assumes that every democratic nation passes through three main phases of development.
They are: the early years or the classical phase; the later years or neo-classi- cal or human relations phase; and, the years of maturity and full development or the systems phase. It assumes also that political and constitutional experience and developments, though con- nected in several ways, are distinct and so can be isolated. Furthermore, it suggests, as Elias (1967), Aguda (1985) and others explained, that political and constitutional experience and developments in Nigeria took a modern and new departure from 1951. For Elias, the Nigerian Constitution of 1951 was "an epoch-making Constitution."
In spite of her chequered experience, Nigeria has made considerable progress in political and constitutional development since her independence in 1960. Some aspects of this development will be discussed briefly here.
CONSTITUTION-MAKING PROCESS Independent Nigeria has so far experimented with five constitutions, the 1960, 1963, 1979, 1989 and 1999 constitutions. (The 1989 Constitution was not promulgated). The 1999 Constitution has given birth to the Fourth Republic, though with prob- lems for which it faces demands for a revision or amendment. The first two of these constitutions were drawn up during civilian regimes while the last three were made or promulgated during military regimes.
Some of the lessons learned by Nigerians dur- ing these exercises are enduring. The lessons have been taught and learned that no constitution is perfect; that ineffective constitutions can be amend- ed or completely altered; that constitution - making, whether under a military or civilian regime, calls for adequate consultations and experimentation.
Furthermore, as was the experience with the 1963, 1979 and 1999 Constitutions, any constitution that is hurriedly drawn up and not tried, stands the risk of failure when subjected to the pressure of political, legal, economic and social forces in and outside the society.
ELIMINATION OF ANACHRONISMS Between 1960 and 1963, certain anachronisms inherited at independence were done away with. Nigeria learned some lessons from the Western Region crisis of 1962 during which the Premier, late Chief S. L. Akintola, was removed from office by the Governor of the Region, Sir Adesoji Aderemi, through the exercise of executive powers. Also very instructive were the three important court cases that resulted there- from: Akintola v Aderemi (1963); Akintola vAdegbenro (1963); and Adegbenro vAkintola (1963). Nigeria has learned that political and constitutional conventions should be applied with restraint and, if possible, carefully guided by means of constitutional provi- sions; that no single individual, however dignified and trusted, should have the power to appoint or remove the Head of State or Head of Government; and, that a strong Republican Constitution should replace the old Monarchical Constitution inherited from Britain. These lessons served as the back- drop against which the 1963 Republican Constitution was drawn.
One other lesson learned relates to the position and authority of Nigeria's Supreme Court. The majority decision in Akintola vs Aderemi (1963) went in favour of Chief S. L. Akintola but one of the Judges of the Supreme Court, Sir Lionel Brett, dis- sented. On further appeal to the Privy Council in Britain, the decision of the Supreme Court was over-ruled. Nigeria's reaction was sharp. Nigeria's 1960 Constitution was amended to delete the requirement for a final appeal to the Privy Council in Britain.
The Republican Constitution of 1963 was contemplated and later introduced to replace the Governor-General with a President. This further severed the links between Nigeria and Britain in political and constitutional matters. Subsequently, the Nigerian Supreme Court was fully Nigerianised. The abolition of the Parliamentary system of gov- ernment in Nigeria on 1st October, 1979 completed the process of change from the old monarchical order, inherited from Britain, to a republican order.
POLITICAL AND CONSTITUTIONAL DOCTRINES Nigeria has maintained a written Constitution as the supreme law of the country. Thus, there is a departure from the British unwritten political and constitutional principle. She has also maintained two (and as from 1979, three) separate lists staling the functions of the Federal, State and Local Governments.
In order to strengthen the hands and position of the Federal Government for purposes of legislation and control, Nigeria has adopted from America the doctrine of Repugnancy and from Australia, the doctrine of Covering the Field. By the doctrine of Repugnancy, the Nigerian Constitution maintains that any law which is inconsistent with the provi- sions of the Constitution, shall be void to the extent of the inconsistency. By the doctrine of Covering the Field, it is maintained that the Federal Government can legislate on any matter which it has legislative competence. Any State laws which are inconsistent with a Federal legislation on the same subject shall, to the extent of its inconsisten- cy, be void and inoperative. Thus, politically and constitutionally, the Federal Republic of Nigeria is a strong Federation.
POLITICAL AND CONSTITUTIONAL CONCEPTS AND CONVENTIONSNigeria initially followed the British practice of separation of powers, with a strong emphasis on judicial independence. From 1960 to 1966, the Prime Minister and his ministers sat in the legisla- ture and formed the Government. They helped in making and enforcing the laws. Premiers and their ministers did likewise in the Regions. The parlia- mentary system in Nigeria took the form of the "Split Executive System". By 1979, she moved towards the American practice where stricter principles of separation of powers are practiced.
The President has become an Executive one and State Governors are Executives. They no longer sit in the legislatures. The independence of the judiciary has been reinforced in several cases, including Kalu Anya v Borno State House of Assembly and Other (1984). In this case, an effort at arbitrary removal from office of Mr Justice Kalu Anya, the then Chief Judge of Borno State, was resisted and declared null and void by the Supreme Court.
The principle of Separation of Powers and the doctrine of Repugnancy were also reinforced. In Balarabe Musa v Kaduna House of Assembly (1981), the principle of Separation of Powers and judicial respect for the Legislatures and their privi- leges were sustained. In the latter case, the removal of Balarabe Musa, the then State Governor, by the Kaduna State House of Assembly, through Impeachment Procedure, as provided for in the 1979 Constitution, was endorsed by the Supreme Court.
Nigeria has also maintained the concept or principle of the Rule of Law inherited from Britain. Legislative supremacy is limited by the Constitution. Leoislation declared bv the courts to be in violation of the constitution are null and void.
HUMAN RIGHTSConsiderable progress has also been made in the area of human rights. Adequate provision for the enforcement of the fundamental human rights of Nigerian citizens is made in the Nigerian Constitution and are regularly upheld by the courts when they are breached.
The Nigerian Constitution also guarantees to Nigerian citizens the right to fair hearing and repre- sentation by counsel of choice. The Constitutional right to freedom of con- science and religion has been upheld by the courts. The Constitutional right to freedom of expression, movement and to hold opinions has also been upheld by the Courts.
CITIZENSHIP QUESTIONThe rights and privileges of Nigerian citizens have been carefully provided for in the Nigerian Constitution. In Shugaba's case (1981), it was illus- trated beyond doubt that those provisions are not to be taken lightly. An attempt by the Minister of Internal Affairs to deport Shugaba Darman, purport- ing him to be a non-Nigerian, was declared null and void. Arbitrary executive action was, thus, success- fully challenged and kept in check in line with the principles of the Rule of Law and supremacy of the Constitution. In addition, scandalous abuse of the constitutional rights of citizens has been frowned upon by the courts.
CENSUSNigeria has learned lessons from the disputed Census of 1963 and that of 1973 which was can- • celled. The conduct of the 1991 Census was care- fully planned and executed to the admiration of the , majority of well-meaning Nigerians. The principle has been upheld that political, constitutional and socio-economic planning and development without a sound census or realistic population basis is doomed to fail.
THE MINORITY QUESTIONThis has, since the 1950s, been a very con- tentious issue which led to the setting up of a full- scale Commission of Inquiry; The Willinks Commission of Inquiry from 1957 to 1958. The issue was largely responsible for most of the politi- cal and constitutional problems between 1960 and 1966. Efforts have been made to address the prob- lem since 1967 through the process of creation of states and local governments, and the observance of the principles of Federal Character and Local Govern-ment spread as political and constitutional principles.
Before the outbreak of the Nigerian Civil War in 1967, the Federal Government, under General Yakubu Gowon, abolished the existing Regions and created, in their stead, twelve States. The Murtala Mohammed regime created seven more States in 1976, thus bringing the total number of states in the Federation then to nineteen. It also created a new Federal Capital Territory in Abuja. The Babangida regime raised the total number of states to twenty- one in 1987 and then to thirty in 1991. The Abacha administration raised the number of states to thirty- six in October, 1996.
Since 1976, the Local Government System in Nigeria has undergone radical reforms. In 1976, a total of 306 Local Governments were created by the Murtala/Obasanjo regime. The Babangida regime raised the number to 449 in 1987 and to 589 in 1991, while the Abacha regime raised the number further to 774 in 1996.
ACCOUNTABILITYThe concept of accountability was identified, as far back as during the Colonial regime, as an impor- tant factor in the political and constitutional devel- opment of Nigeria. It received a boost consequent to the celebrated Foster-Sutton Commission of Inquiry in 1955. Since then, the concept has been reinforced in practice. This is exemplified by the fol- lowing: constitutional protection for Auditors- General of the Federal, States and Local Governments; and, in particular, the operation of the Ombudsman system as a political and constitu- tional principle.
Nigeria's Ombudsman system consists of the Public Complaints Commission (Federal and State) and the Code of Conduct Bureau and Tribunal. Decree No 43 of 1988 (now abrogated) on Civil Service Reforms had a schedule which dealt with accountability as a national issue with appropriate sanctions. The rules concerning accountability are now protected by several other laws and revised Civil Service Rules. In 1999, the Obasanjo Administration introduced an Anti-Corruption bill to the Legislature in furtherance of the objective.
TRANSITION TO CIVIL RULE: A RIGHT INCLINEBetween 1983 and 1998, the choice of a correct model of Transition to Civil Rule Programme eluded Nigerians, thrice. Before its final collapse, the Babangida Administration tried two models of the Transition to Civil Rule Programme. The first was the Machiavellian model, characterised by uncer- tainty, prevarications and inability to fix a consistent handing over date. The second was a modified Egyptian or Abdul Nasser model, characterised by a tendency towards self-succession by the incum- bent ruler or President. In the latter case, Babangida had, allegedly, hoped to obtain his endorsement as a civilian President for the Third Republic by an Act of the National Assembly. The bid failed. He then "stepped aside" on 27 August 1993, but shoved into office an Interim National Government headed bv Chief Ernest Shonekan.
Shonekan's government was declared illegal by a Lagos High Court and booted out of office in a palace coup d'etat master-minded by General Sani Abacha.
Thereafter, a third attempt at choosing a model of transition to civil rule was made during Abacha's tenure as Head of State. His choice was, obvious- ly, the Egyptian model with a bid for self succession, this time around, by means of an election in which he was to be declared legally a "Consensus Candidate", adopted by the five government- approved political parties. He had almost achieved his aim, but on 8 June, 1998, he died.
General Abdulsalami Abubakar was the suc- cessor to General Abacha. As soon as he was firm- ly on the saddle, he proclaimed his administration's support for a genuine democracy, an early return to civil rule and handing over of power to a democrat- ically elected civilian government on 29th May, 1999. He planned and implemented a programme that eventually brought in the Fourth Republic with Chief Olusegun Obasanjo as the President .
THE ELECTIVE EXECUTIVE PRESIDENTAs soon as Obasanjo assumed power as President, he chose to become an effective Executive President. This predisposed him to three obvious choices among the prevailing presidential power theories: the residual power; the inherent power; or, the specific great power model. He seemingly chose the inherent power model by which he hoped to return stability to Nigeria, do away with crippling redundant and conflicting laws; place the military in the barracks; retire the old guards; and maintain national boundaries within peaceful limits.
Some Nigerians have decried some of Obasanjo's actions and utterances as unpleasant and uncharitable, but certainly no one has success- fully challenged the legality and constitutionality of those actions and utterances, including his expung- ing of the old conflicting laws under the provisions of Section 315(1), (2) and (3) of the 1999 Nigerian Constitution and his threat to impose a state of emergency on Delta, Bayelsa and Lagos States where youth crises had threatened to reach a destabilising level.
THE FOURTH REPUBLICNigeria's Fourth Republic came into being on 29 May, 1999. There is every sign of success on its way, nationally and internationally. A National Rebirth Programme has been launched and its suc- cess demands the committed participation of all Nigerians. It is hoped that democratic government has, indeed, come to stay in Nigeria, with this Fourth Republic.
SOME PROBLEMSNigeria, in spite of her progress, still faces several seemingly intractable political and constitution- al problems. The experience of constitution-making in Nigeria, though almost a generation and half old, still faces various problems. Among these are the controversies over the distribution of powers between the Legislature, the Executive and the Judiciary; Executive or Split Executive of the Presidential system; operation of the party system in its new form; the role of the Independent National Electoral Commission and the limits of its powers; and the choice of a satisfactory formula for political party formation that can guarantee stability and progress in the election of a President.
In the last case, between 1960 and 1963, Nigeria was ruled by a coalition between the domi- nant political parties in the North and the East to the exclusion of that in the West. Between 1964 and 1966, the Federal Government was largely a coali- tion between the North and the West, to the exclu- sion of the East. Furthermore, between 1979 and 1983, the formula of the North-East coalition was revived with some recognition for the eastern minorities. With respect to the Third Republic, how- ever, the formula was not clear until the collapse of that Republic. In the Fourth Republic, the formula of coalition between the West and the North has been revived but with considerable recognition for the East and the Minorities.
CONCLUSIONThere are signs of further progress in line with the enthusiasm and commitment that often accompany moments of change. Reforms of the nation's political and constitutional machinery, bureaucracy, economic and social structures are still in progress in the Fourth Republic.
In her political and constitutional experience and developments, Nigeria has passed the classi- cal phase. She is now making progress, though not without considerable difficulties, through the later years of the human relations phase. Hopefully, in no distant future, she will reach the dawn of the sys- tems phase, now in vogue in the industrialised countries of the world. The transition to civil rule already completed and the Fourth Republic now firmly in place are definitely pointers in the right
FURTHER READINGAguda, T. A., (1985) "Constitutions and Constitutional Changes", in J. A. Atanda and A.Y. Aliyu (Eds.) Proceedings of the National Conference on Nigeria Since Independence: Political Development, Zaria: Gaskiya Corporation, 1985. Nwabueze, B. 0. (1985) Nigeria's Presidential Constitution, London: Longman, 1985. "First Hundred Days in Office - Olusegun Obasanjo", Newswatch Magazine (Special Edition), September 13.1999.
Nwabueze, B. 0., Presidentialism in Commonweath Africa, London: C. Hurst and Company, Pp I I - 16.
No comments:
Post a Comment