Evolving a constitution that works for Nigeria
The fact that Nigeria’s democracy even economy is heading for the rocks is so apparent even a blind man can see it. To arrest the situation deserves urgent actions aimed at effectively reversing the ugly trend. The major cause of the political and economic tension being experienced today in the country is that the country has not been able to build consensus on the constitution. The phenomenon largely accounts for the extremely fragile and slow development of the country. It is also the reason for the continued unrest and agitations across the country.
The National Assembly has adopted a piecemeal approach to altering the 1999 Constitution. Three alterations have been successfully made to the Constitution. The Constitution of the Federal Republic of Nigeria (Fourth Alteration) Bill failed because then President, Goodluck Jonathan withheld his assent hence the need for another attempt. Both chambers of the National Assembly have again inaugurated committees on the constitution. The Senate committee is headed by Deputy Senate President; Ike Ekwerenmadu While the House of Representative committee is headed by the Deputy Speaker; Hon. Yusuf Suleiman Lasun.
For us, the crucial issues in the nations constitution include but not limited to: restructuring the political arrangement to strengthen the states and local governments through the devolution of more powers and funding – this many constitutional experts believe would strengthen the unity of the country, but would also ensure stability and prosperity; review of the legislative list to reduce the exclusive list which as it stands confers too much power, responsibilities and wealth at the centre as well as the concurrent list which empowers the federal government and gives it more say in matters that ordinarily should be the exclusive domain of state governments; Strengthening key institutions that support democracy like the Courts, INEC, Police, ICPC, Accountant General, Attorney General, CBN, National Human Rights Commission, EFCC, Public Defender, Code of Conduct Bureau, Auditor-General etc.
HURILAWS has reviewed the Constitution of the Federal Republic of Nigeria (Fourth Alteration) Bill now under consideration at the National Assembly and have made contributions to the Bill. Our contributions include:
INTRODUCTION OF A DECLARATION OF NULLITY CLAUSE
Section 1 of the Constitution makes a proclamation of supremacy. This is not enough. The section should contain a DECLARATION OF NULLITY CLAUSE i.e. the Constitution shall declare unconstitutional acts null and void. It is not enough for the Courts alone to declare nullity. Evidence of violation of constitutional provisions should be enough for acts to be considered null and void. The Courts would only play a narrow role of declaring invalid, any breach of the constitution. Section 1 of the principal Act should be altered by inserting immediately after subsection (3), a new Subsection “1(4)” – Stating, ”If any act is inconsistent with the Constitution, that act shall be null and void.
CLARIFICATION OF APPROPRIATION PROCEDURE FOR THE JUDICIARY
Section 81 (1) & (2) of the Constitution gives the impression budget estimates of the Judiciary is part of the Appropriation Bill. This needs to be clarified. The Federal High Court in Olisa Agbakoba vs. Attorney General & 2 others Suit FHC/ABJ/CS/63/2013 has decided that the Executive cannot appropriate for the Judiciary. Section 81 of the principal Act should be altered by inserting immediately after subsection (2), a new Subsection”81 (2) A & B”
“81 (2) (A) Notwithstanding Subsection (2), estimates of the revenues and expenditures of the Judiciary are not part of the Appropriation Bill”
“81 2 (B) The National Judicial Council shall cause to be prepared and laid before each House of the National Assembly at any anytime in each financial year estimates of the revenues and expenditures of the Judiciary.
CLARIFICATION OF JURISDICTION OF THE FEDERAL HIGH COURT
The Federal High Court and specialized administrative tribunals like the Investment and Securities Tribunal and Tax Appeal Tribunal seem to share jurisdiction on some subjects, although this has been contested up to the Supreme Court because of the provision of s 251 (1) of the Constitution. The Constitution needs to clarify the jurisdiction of the Federal High Court and these specialized tribunals to avoid conflicts. The international best practice is to encourage specialized administrative tribunals because they have technical expertise, flexibility and speed. The regular courts tend to lack skills and are overcrowded. We propose two options:
Option 1 – make jurisdiction of the Federal High Court in s 251 (1) concurrent. Section 251 (1) of the principal Act is altered by deleting from Section 251 (1) the words “to the exclusion of any other court”
Option 2 – clearly delineate jurisdiction of the Federal High in relation to specialized tribunals. This will require alteration of Section 251 (1) (a)-(s) of the principal Act.
STRENGTHENING NATIONAL INSTITUTIONS
Section 153 of the Constitution establishes National Institutions that by nature are like executive agencies. Some of these institutions include the Code of Conduct Bureau, Independent National Electoral Commission, Nigeria Police Council, Police Service Commission, Revenue Mobilization and Fiscal Commission etc. They have no practical constitutional guarantees for independence and effective functioning. There is no security of tenure, guaranteed funding, insulation from political interference etc. It is of absolute importance that there should be some guarantees that make them independent and free from interference. We should borrow a leaf from Chapter 9 of the Constitution of South Africa titled – “Institutions Consolidating Democracy”. It is suggested that Chapter 9 of the South African Constitution should replace our Section 153 or our Section 153 should be amended to strengthen INEC, Police, ICPC, Accountant General, Attorney General, CBN, National Human Rights Commission, EFCC, Public Defender and Code of Conduct Bureau. They should be recognized and made vital National Institutions. They should be entitled to first charge on the federation account and other necessary guarantees by the constitution.
The objectives of this initiative is to encourage popular participation in the democratic process in Nigeria; enhance the role of civil society in the democratic process in Nigeria; contribute positively to the debate and conversation on the review of the Nigerian Constitution and facilitate, mobilize and coordinate views and opinions of civil society groups across Nigeria on the constitution review debate.
HURILAWS is also a public policy think-tank and pressure group working in partnership with multi-sector development and change actors to promote accountable and transparent governance in Nigeria. In particular, HURILAWS is the driver of the Multi-Sector Law Group (MSLG), which is a multi-disciplinary network of civil society actors and organizations for democratic change in Nigeria, chaired by Olisa Agbakoba, Senior Advocate of Nigeria, SAN and founder of HURILAWS.