The crisis over the removal of petroleum subsidy, which has just ended, though it threatened the basic amenities and comforts of life of all of us, especially the common people, is only a symptom of a much more basic and fundamental malaise that threatens the very life of our dear country. The petroleum subsidy and its removal is only symptomatic of the all-pervading rottenness that exists in every aspect of the administration of public affairs in the country, engulfing nearly everyone involved in government. The rottenness is indeed so all-pervading: it has penetrated every relations, every dealing and every activity of government. It has broken loose of all legal barriers and restraints, and become completely buccaneering; a plunder brazenly perpetrated. Even the so-called petroleum subsidy is a colossal manifestation of this rottenness. A New Nigeria of our dream must be cleansed of this rottenness.
The cleaning process requires that the Nigeria State be re-designed and re-built, not just re-branded. It requires, not its break-up into its component parts, but a more healthy integration of all its parts and groups into one solid entity, firmly united in its diversity – the new creation is the New Nigeria of our dream.
The re-building of an existing rotten State, like Nigeria, requires that its superstructure be re-designed. The super-structure of a State is its constitution. The present Constitution of Nigeria is defective and unfit for use for the purpose, not only because it is not a People’s or democratic Constitution, having been made, not by the People, but imposed on them by the military rulers, just as its predecessors were imposed on us by the colonial masters. The Constitution is defective and unfit for the no less unacceptable reason that the federal system which it establishes for the government of the State, while generally accepted as best suited to the circumstances and needs of the country, is too lop-sided and unbalanced by over-concentrating too much power and financial resources at the Centre at the expense and to the detriment of the States which comprise the ethnic nationalities; it thereby fails to establish and maintain a proper balance between the needs and demands of building a nation and the preservation of diversity in a multiethnic, multi-religious and multi- cultural country. It therefore throws to the wind the virtues of multi-culturalism which, as is said by Professor Samuel Beer, “is basic to the national outlook.”
The rationale underlying the Constitution that over-concentration of power and revenue at the Centre would assure or conduce to national unity has been proved by events since 1979 and 1999 to be a ruinous delusion. Far from that being the case, the over-concentration of power and revenue at the centre has tended to alienate the ethnic nationalities from the Nigerian State. It has intensified the struggle for the control of the federal government, pitching tribe against tribe and, in consequence, undermining the unity, peace and stability of the country.
The main bone of contention in the struggle among the ethnic groups for the control of the federal government is the over-powerful and juicy office of the president of the country. The failure of the Constitution to assure to the ethnic nationalities, grouped in Zones or Regions, equal access to the office is rightly perceived as a source of great injustice in the polity. Injustice, especially injustice arising from deprivation or denial of what is considered as one’s rightful due, arouses indignation, which expresses “a sense of not being regarded as worthy of consideration. Injustice betokens an absence of respect, and manifests a lack of concern.” For this reason, the occurrence of injustice, especially if it is on a wide scale, immediately puts the “unity and coherence of society under strain.”
Justice is thus rightly regarded as the “bond of society,” the “cornerstone of human togetherness.” It is the condition in which the individual can feel able “to identify with society, feel at one with it, and accept its rulings.” An unjust society cannot maintain its unity and cohesion, because it cannot arouse in its members a strong enough feeling of loyalty and allegiance. Injustice not only alienates the individual’s loyalty, what is worse, it also arouses him to disaffection. An individual, more so a racial or ethnic group, denied recognition by society cannot but feel alienated and disaffected. “Justice,” wrote James Madison, “is not only the end of government, it is the end of civil society. It ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit.” There is just too much social injustice in the land, which undermines the foundations of the New Nigeria of our dream.
The Boko Haram menace, featuring bomb explosions all over the place, a new phenomenon in our national life, is, at bottom, not a religious thing, as it is commonly said to be. It is, on the contrary, an organized action master-minded by those behind it, protesting their grievance against the injustice of being denied what they consider, rightly or wrongly, the turn of their Region to occupy the presidency. Its origin clearly attests to this.
The Constitution is again defective in not addressing squarely and by affirmative provisions, the issue of the rotation of the presidency among the ethnic nationalities, grouped in Zones or Regions. It does, no doubt, contain in section 14(3), a provision aimed at addressing the issue. The subsection says as follows:
“(3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such manner as to reflect the federal character of Nigeria and the need to promote national unity and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies.” (emphasis supplied)
A similar provision is made in subsection (4) as regards a State Government and a local government council. But it is not enough merely that the “federal character” of the country is reflected in the composition of the government and its agencies and in the conduct of their affairs unless the application of the principle results in “ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in the government or in any of its agencies.” It is not enough that each group is represented in the organs, councils and departments of the government if the government is more or less permanently dominated by one group or a combination of the same groups. The prevention of domination, more than mere participation by representation, is the central objective of the federal character principle in the Nigerian Constitution.
Now, domination arises not so much from numbers as from control of the key positions where vital decisions regarding policy, financial disbursements, appointments, award of contracts, etc. are made; where, in short, the business of governing takes place. The messengers, artisans, clerks, the technicians, executive officers and the middle cadre officers are undoubtedly an indispensable part of the machinery for the administration of government. They all contribute vital inputs to the total material on which decisions about government are based. They are even more vital in the execution of decisions. Yet they are no more than supports with very little real power to affect the conduct of government. They cannot dominate, whatever their number. Domination is material at the level of the permanent secretary or director-general and his deputy, minister and, above all, head of government. It is at these levels that the actual governing takes place. In terms of representational value, the permanent secretary, director-general or minister counts for almost as much as the rest of the staff in a ministry put together. Indeed, under the presidential Constitution of Nigeria the President is, to all intents and purposes, the executive government. So was the Head of the Federal Military Government (FMG) in the military administration. It is such key positions particularly that the federal character principle requires not to be dominated by any one group.
The principle requires, therefore, above all else, that the headship of the government should move round, and be rotated between the geo-political zones in the country according to an arrangement to be agreed among the ethnic nationalities grouped in zones. It is predicated upon the view of a multi-ethnic society as a house on many pillars, and that the edifice will begin to wobble and its stability imperiled if the headship of the government is not made to move round the groups. Although the provision of section 14(3) above is a clear enough constitutional authorisation for rotation, yet for the avoidance of doubt, rotation should be written into the Constitution in explicit, affirmative terms.
The rotation of the presidential office among the geo-political zones should be combined with a single, non-renewable term of five years, with an explicit bar against previous incumbents, who have been in the office for two years or more, including those who occupied the office, however it may have been designated, under a military or nondemocratic dispensation. A single, non-renewable term of five years is pre-eminently necessary and desirable to facilitate the rotation of the presidential office among the zones, and to create in them a feeling that their chances of acceding to the office are real and not too remote, since the turn of each zone will come sooner than under the system of two terms of four years per term. Anyone elected to the office will have to apply himself assiduously and conscientiously to his responsibilities, knowing that he has just five years to try and accomplish his programme, and he will have only his incompetence to blame if he is not able to do so. It is believed that five years is enough time for an energetic, dynamic and well-focused President to accomplish his programme.
The Preamble is even worse than defective. To begin with, it is an absurd lie and a grievous insult to invoke the name and authority of the People in a document (i.e. the 1999 Constitution) in the making of which they had no hand at all and whose content they knew nothing about. In the second place, its wording is somewhat quaint, uninspiring and devoid of any nationalistic sentiments; above all, it tells us nothing about where were coming from, and what we aspire to become now and in the future. It simply says: “We the People of the Federal Republic of Nigeria: HAVING firmly and solemnly resolved: TO LIVE in unity and harmony as one indivisible and indissoluble Sovereign Nation under God dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding…… DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES the following Constitution.”
The word typed in bold letters are not words to inspire or arouse in us any kind of nationalistic sentiments, they have become hackneyed any way. A preamble was unknown in constitutions made by Britain for her colonial empire, and while lacking legally binding force as part of the law of the constitution, it has today come to play a vital role as a source of inspiration and rallying cry in the constitutions of the countries of the world, especially countries emerging into existence as independent states from colonial or oppressive rule, This vital role of the preamble all began with the Preamble in the Constitution of the United States of America 1787, the revolutionary mother of what, since that time but not before – the earliest such document was called an Instrument of Government, not a Constitution – has come to be known as a “constitution.” The Preamble to the Constitution of the U.S. begins as follows: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence…..do ordain and, establish this Constitution for the United States of America.” The words typed in bold letters have deep significance as recalling the history of the country.
The Preamble to the Constitution of Nigeria thus mimics that of the American without regard to the history behind the latter; it simply portrays a mimetic mentality, which is part of our sad inheritance from colonialism. The originality of the Preamble to the Constitution of South Africa 1996, the recall of the country’s past, and the nationalist sentiments and aspirations it expresses provide a refreshing contrast to the blankness and triviality of the Nigerian Preamble. Its relevant parts merit quotation in their exact terms: “We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore ………. adopt this Constitution as the supreme law of the Republic so as to – Heal the divisions of the past and establish a new society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.” The emphasis is on the building of a New Society, a New South Africa, to which all who live in it, white, black, half-caste and Asian, can feel, with pride, that they belong.
The present out-moded Preamble to the Nigerian Constitution must be erased and replaced by one appropriate to the nationalistic sentiments and aspirations of the New Nigeria of our dream, and which can rally us to its banner. The best part of the 1979/1999 Constitutions is the Fundamental Objectives and Directive Principles of State Policy in chapter 2; it is the best, not because I was responsible for it as Chairman of the Constitution Drafting Committee’s sub-committee charged with it. I adjudge it the best in part because of the innovativeness of its provisions in constitution-making in Africa. First introduced in Nigeria’s 1979 Constitution, it has been adopted in the constitutions of ten other African countries made since 1990 – Zambia 1991, Ghana 1992, The Gambia 1996, Uganda 1995, Tanzania 1984 (as amended for purposes of democratic transition in 1992), Malawi 1992 (as revised in 1994 and 1995), Lesotho 1993, Sudan 1998, Sierra Leone 1991 and 1996, and Eritrea 1997. The Objectives and Directive Principles vary in the range of economic, social and cultural rights covered, with some following closely the Nigerian prototype. (Sierra Leone’s is almost identical in format and wording with the Nigerian.)
Without going into the details of the variations, Nigeria’s will be used here to illustrate the social welfare amenities and benefits demanded of the state for the benefit of its citizens in the new democratic dispensation. The state is to direct its policy towards securing for all citizens suitable and adequate shelter, medical and health facilities, facilities for leisure and for social, religious and cultural life, and free education at all levels. On the economic side, the state is required to direct its policy towards ensuring that all citizens have the opportunity for securing adequate means of livelihood and suitable employment; that for all Nigerians there should be a minimum living wage, unemployment benefits, old age care and pensions, just and humane conditions of work, and equal pay for equal work without discrimination on account of sex; that the health, safety and welfare of all persons in employment be safeguarded and not endangered or abused; that children, young persons and the aged be protected against any exploitation whatever, and against moral and material neglect; that provision be made for public assistance in deserving cases or other conditions of need; that the national economy be controlled in such a way as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity; that the material resources of the community be harnessed and distributed as best as possible to serve the common good; that the economic system should not be operated in such a way as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; and that planned and balanced economic development be promoted.
All organs of government and all persons or authorities exercising executive, legislative or judicial functions are required, as a matter of constitutional duty, to conform to, observe and apply these principles. It must be emphasized that the duty thus cast on the state is only to pursue a policy that is geared towards securing the amenities specified; it does not confer on any individual a corresponding entitlement to demand the amenities as a right, and no machinery is provided by the constitution for ensuring such compliance, the use of the courts for the purpose being explicitly excluded (section 6(6).
Although South Africa’s transition Constitution, 1996, does not have Directive Principles of State Policy specifically so titled in a separate chapter, many of the benefits and amenities in the Nigerian Directives noted above are covered in its “Bill of Rights” chapter (chapter 2), as they are indeed covered in the constitutions of many other African countries – housing, health care, food, water, social security, education, protection for children (sections 26 – 29). While everyone has, in terms of the provisions, a “right” to the benefits and amenities there stipulated, the duty they cast on the state is again, as under the Nigerian Directives and others, only a duty to “take reasonable legislative and other measure within its available resources to achieve the progressive realisation of each of these rights”.
The Fundamental Objectives and Directive Principles of State Policy in chapter 2 are the best part of the Constitution for the additional reason that they epitomise and incarnate the New Nigeria of our dream, if only life had been breathed into them by government as active principles in the governance of the country. Regrettably, they have remained largely on the pages of the Constitution. The “democracy dividends” they promise to the people are not being actively pursued, not to say realised. The notion of the welfare state remains a far-off cry, a mirage. The Constitution is not entirely free of blame for this. Its failure to provide a machinery for obliging the government to implement the Objectives and Directive Principles should be acknowledged as a serious shortcoming. Whilst the justiciability of the provisions in the courts is perhaps rightly rejected for reasons we need not go into here, some other method of obliging government to implement them should have been devised.
I will suggest that the Constitution should provide for a plebiscite to be held at the completion of an incumbent president’s one year in office and every successive year thereafter to enable the people to appraise by their votes, his performance in the implementation of the Objectives and Directives, and whether he should continue in office.
There are, admittedly, many respects in which the Constitution needs to be reviewed, but the details need not be gone into in the present Paper. Finally, it needs to be stated that, vital as they are, institutional forms and structures, however well-designed, cannot operate themselves. It is here that the human factor comes in as a decisive consideration. Much depends therefore on the quality of the leadership. It must be a leadership at once selfless and public-spirited; a leadership able to combine “ideas and power, intellectualism and politics”; a leadership unvindictive, unrevengeful, and free of any ambition or desire to pervert the system for personal or ethnic advantage or for self-enrichment; above all, a leadership totally committed to the cause.
Professor Ben Nwabueze delivered this speech at the protest rally of eminent Nigerians that was disrupted in Lagos by the police on January 19, 2012.
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