Nigeria: Making a people’s constitution

By Femi Falana

Last Tuesday the Minority Report and Draft Constitution for the Federal Republic of Nigeria, 1976, was publicly presented at the University of Lagos.

The historical context of revisiting the 43-year old document is bound to generate hope with an admixture of regrets.
A quick reminder might be necessary at this juncture.
As part of the initial steps towards the transition to civil rule in 1975, the regime of General Murtala Mohammed gave a committee of 49 eminent Nigerians the job of producing a draft constitution for the Second Republic, which was scheduled to begin on October 1, 1979. In fact, Murtala initially nominated 50 members into the committee chaired by legal luminary Chief Rotimi Williams. Hence it was dubbed a “committee of 50 wise men” in the media. However, Chief Obafemi Awolowo (who later emerged a presidential candidate in the course of the transition programme) declined to serve on the committee.

Two members of the Constitution Drafting Committee (CDC), Dr. Olusegun Osoba and Dr. Yusufu Bala Usman, both radical historians, fundamentally disagreed on ideological grounds with the report supported by the majority of 47 others.

On the question of human progress, the philosophical divergence between the minority and the majority within the CDC was too wide to expect a compromise.

Hence, the minority came up with the document, which has now been published by the Zaria-based Centre for Democratic Development Research and Training (CEDDERT).

By the time the report was ready in 1976, Murtala had been killed in an abortive coup and his second-in-command, General Olusegun Obasanjo, was now in charge.

Regrettably, the Obasanjo regime rejected, in a most hostile manner, the Minority Report, as it is now known in Nigeria’s political history. The report of the majority was debated by a Constituent Assembly and later decreed into the 1979 Constitution, the basic content of which has formed the nucleus of the subsequent constitutions including the Decree 24 of 1999 otherwise called the 1999 Constitution.

A critical readingof the publication would bring to the fore the radical diagnosis and the extraordinary prescience in the prescriptionsfor the Nigerian condition made by the authors. This is despite the fact that the authors wrote 43 years ago that they never pretended to put forward “a perfect document.” In the true tradition of self-criticism that is the hallmark leftist thinkers, they readily admitted “faults and inadequacies” in the document.

Besides, the dynamics of Nigeria’s political economy would compel an update of a few of their propositions as Dr. Abubakar Siddique Mohammed, director of CEDDERT, rightly puts the matter in the highly instructive forward to the publication.

Yet, Nigeria could possibly have avoided the current obstacles to genuine democracy and sustainable human development if some of the questions posed and the answers provided by Osoba and Usman, two leading lights of the Nigerian Left, in their unambiguously progressive Report and Draft of 1976had been considered.

Take a sample!
Unknown to the Not Too Young to Run campaigners(who sometimes make a fetish of age in politics), Osoba and Usman had recommended in Section 145 of their own Draft Constitution way back in 1976 the minimum age of 30 as part of the qualifications to contest for the office president or governor. Forty three years later, the same provision is being celebrated by youths whonow see the man that treated the Minority Draft then as “non-existent,” Obasanjo, as a pathfinder of their future!

Similarly, it is significant that the constitutional immunity for the president and governors and their respective deputies was hotly contested by Osoba and Usman during the making of the 1979 Constitution. According to them the immunity provisions “ contradict violently the fundamental principle of the equality of all citizens before the law and is an unwarranted attempt to shield these high officials of the state from the full rigours of the law as would apply to the other citizens of Nigeria in similar situations of misconduct or improper conduct.” If you ask the anti-corruption agencies the main roadblock in their work today, they would readily tell you that it’s the constitutional immunity for this category of public officers.

Other similarly remarkable provisions encapsulated in the Draft, but were regrettably rejected by the Obasanjo regime, include those on accountability by those in power; the purpose and management of political parties as well as the appointment of a prime minister by the elected president for the purpose of diffusing power.

Now, talking about the atmosphere of hope that should be created at this period of our history, the leading spirits of the CEDDERT should be saluted for their keen sense of historical purposein resurrecting at this time a document that was once “killed” by a military dictator. The basis of hope is that those desirous of fundamentally confronting the deteriorating Nigerian condition would be equipped by the contents of this publication.

In the fresh introduction to the publication entitled “The 1979 Constitution and its Legacy of Catastrophic Succession of Governments, 1979-2018,” Osoba posits that given the enormity of the “crisis of governance” in the land the constitutional reforms intended in the 1976 proposition might prove inadequate in the circumstance.

In fact, given the progressive ferments of the 1970s, these two progressive constitution writers could not have imagined the current crisis of the economy, society and politics.
Osoba has, therefore, proposed a “minimum agenda for change” based on the “root and branch” strategy. The proposition ought to stimulate honest discussions among those sincerely working for a progressive transformation of Nigeria.

Yet a few areas should be isolated in the 1976 efforts of Osoba and Usman that could provide clues on how to tackle the contemporary problems of poverty, inequality, social injustice, insecurity and the dangerous clogs in the wheel of national integration.

As far as the making of a people’s constitution goes, compared with the 1979 Constitution the draft put together by Osoba and Usmanisindubitably richer in content(from the viewpoint of the genuine interests of the people). And the style of the draft is admirably accessible.Many great constitutions are, in fact, slim in volumes!

As Osoba and Usman rightly put it, the 1979 Constitution is a deliberate effort at mystification for the selfish interests of the bourgeoisie. The constitution is verbose. It is laden with technical loopholes. It is unwieldywith some contradictory provisions.

As a matter of fact, the pull for the Chapter II of the 1979 Constitution, which is also incorporated in the 1999 Constitution, was actually the Minority Report of Osoba and Usman that we are celebrating today. Although the undeniably progressive provisions of the Chapter II have been cynically made non-justiciable, the whole chapter itself was a backhanded response to the ideological and political pressures generated by Osoba and Usman’s report and draft in their own categorically radical draft. It was a concession the majority members of the CDC were forced to make to Osoba and Usman.

So, the majority members of the CDC gave the people socio-economic rights in Chapter II of the 1979 Constitution with onehand and took away the rights with the other hand by the non-justiciable Clause.
Since then the struggle has been shifted to the courts and the push for enactment of laws to back up policies tailored towards securing socio-economic rights for the people. Hence we have had the emergence of legislations backing funding of basic education and primary healthcare and policies on social housing, social insurance and financial inclusion. It must be admitted that all these are at best palliatives and they are never a substitute to the constitutionally enshrined provisions for social- economic rights.

The principle underlying the divergence of the progressive document from the 1979 is well articulated by the authors in Part 1 of the publication.

Osoba and Usman embark on a sharp critique of the Majority Draft for making “elaborate provisions to protect the ‘Right to Property’ contained in Section 36 and 37” while declaring the socio-economic rights of the people to be “non-justiciable.”

Here we are talking of the people’s rights to education, healthcare, social housing, mass transit, social protection, water supply, sanitation etc.

In contradistinction, Osoba and Usman spell out the “Fundamental Economic and Social Objectives” in Chapter IV of their draft without the pernicious provision of non-justiciability.
Now, if Nigeria had been constitutionally and philosophically run on the basis of the Minority Report with socio-economic rights of the people reigning supreme, the scourge of poverty would not have been ravaging the land so ferociously as it is doing today.

In Section 36 of the Minority Draft, Osoba and Usman propose as follows:“The Federal Republic of Nigeria is committed to a rapid, even, balanced and self-reliant economic development and the state shall direct and plan the national economy. Appropriate planning authorities shall be created at village, district area, state and national levels to ensure closely integrated planning based on the genuine needs and interests of the people and their full and active participation.”

In retrospect, if the running of the Nigerian political economy had been informed by such a constitutional provision in the last 40 years, the scandalous social inequality plaguing the Nigerian society couldnot have arisen.

Instead, Nigeria could have at least evolved into a social democracy without a bloody revolution. The Scandinavian countries that are always rated higher in human development than the richer capitalist countries actually apply these social democratic principles in running their economies.

Besides, the devolution of power embodied in the Section 36 of the Draft cited in the foregoing is the type for which the people should struggle and not the devolution of powers to governors who are emperors and looters, as the ethnic and regional champions of “restructuring” are unwittingly framing the question.
The Nigerian federalism should be made to work for the people and not only for the factions of the ruling class located in the various regions and ethnic groups.

It is remarkable that Osoba and Usman rigorously make this genuinely federalist argument in the 43–year old report.
Indeed, if the provisions of the Chapter II of the 1999 Constitution (an inherited item from the 1979 Constitution) had been made justiciable, governments in Nigeria would be taken more seriously in tackling poverty and inequality.
In the same vein, the profundity of the argument of Osoba and Usman in their debate with the authors of the Majority Draft on national integration should command the attention of those approaching the National Question from a progressive perspective.

The Minority Report argues against “state citizenship” which contradicts the “national citizenship.”
If the formula provided by Osoba and Usman in 1976 had been assimilated in the economy, polity and society the bloodletting arising from theepisodic wars of the “indigenes” versus the “settlers” could probably have been avoided.Today, the advocates ofethnic and geographical restructuring dominate waves. In fact, restructuring is presented as the panacea to all Nigerian problems. National unity is becoming ananathema in some quarters dominated by ethnic and regional champions. The voices of the separatists are getting more strident. This is aclear degeneration from the 1976 situation when Osoba and Usman wereeven criticising the authors of the Majority Draft for advancing the cause of the unityof the elites only as against unity of thewhole people.This is how they put the matter: “This is not unity or consensus based on a minimum agreement by all concerning the need to protect and promote the real interests and well-being of the masses of Nigerian people of whatever origin. It is our view that no genuine political unity or consensus is possible in the Nigerian context without such an honest and firm commitment among the various sections of the national leadership to the genuine interests of all our people…”

Chapter II of the Minority Draft defines Nigerian citizenship. According to the draft, a person could become a Nigerian citizen by birth, registration, and naturalisation. Significantly, dual citizenship is prohibited while spouses of Nigerian citizens not wishing to be Nigeria are to be given a special immigrant status at the discretion of the president,who should also have powers to deprive a disloyal person citizenship.The ambiguity on the citizenshipby birth which is a subject of the APC responseto Vice President Atiku Abubakar’s petition at the tribunal might have been unwarranted if the 1999 constitution had made the provision as simple as the Minority Draft.

It is always intriguing when members of the ruling class rationalise the manipulation of religion by saying that the word secularity is not in the constitution. They insist that the intent of the constitution is to say that Nigeria is a multi-religious country and that the government shouldpromote tolerance among adherents of the two main religions of Christianity and Islam especially. If only Obasanjo had listened to Osoba and Usman 43 years ago, the seeming ambiguity would not have been in the public sphere as the Minority Draft states clearly and simply in Section39 as follows: ‘The Federal Republic of Nigeria is a secular republic and the state not be associated with any religion but shall actively protect the fundamental right of all citizens to hold and practice the religious beliefs of their choice.”

So it is clear that with this publication CEDDERT is illuminating the discussions about the future of Nigeria from a most credible vantage.

And the intervention is quite timely. After all, the light that could arise from the enormous heat generated so far in the restructuring debateis the possibility of the proposals being distilled into the process of making a people’s constitution.

So this publication should be a useful material in the hands of those interested in writing a people’s constitution.

It is hoped that this important publication would reawaken the tradition of putting at the centre of national debates credible alternatives for building a humane and just society.
It is even more crucial that such perspectives should inform the organisations working towards the building of such a society.

Falana, a lawyer is a Public Policy Analyst.