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The 1960 Independence Constitution
It is true that Nigeria got her independence from the British Government in 1960 but the Independence Constitution did not actually convey that impression upon close scrutiny. The document came into being through the proclamation of Her Majesty, the Queen of England in the exercise of her powers enshrined in the Foreign Jurisdictions Act of 1890. This Law, in Sections 2 and 3, proclaimed Nigeria as a federation with three Regions namely, West, North and East. The Queen of England, however, retained her power to appoint the Governor General of Nigeria who held office at her Majesty’s pleasure and to act as her representative. The holder of the office still owed the Queen of England allegiance, not Nigeria.
Her Majesty was also a member of the Federal Parliament by virtue of section 36, while section 78 made it abundantly clear that Nigeria was still a dependency. Her Majesty still possessed and exercised executive authority through the office of the Governor General. section 114 of the Constitution subordinated Nigeria’s judicial system to the British throne. Appeals from the Federal Supreme Court was to the Privy Council, described as “Her Majesty-in-Council”. The neo-colonial status of Nigeria was, thus, complete. The Queen was the head of the Executive and Judiciary. She was also a member of the Federal House of Representative. Consequently, Nigeria could be said to be independent in law and fact in 1960.
The Constitution established two chambers for the Federal parliament. There were the Senate and the House of Representatives. The Senate had 44 members while the House of Representatives had 305 members. There was also the office of the Prime Minister who was appointed by the Governor General from the House of Representatives. If the Queen appointed the Governor General who held his office at her pleasure, and he also had the power to appoint the Prime Minister, this translated to the Queen appointing occupiers of the highest and the most important offices in the newly created federation.
The Constitution also laid the foundation for the current crisis of confidence between the Nigerian people and the Nigeria Police Force. It created the Nigeria Police Force with a command structure in a so-called federation of three Regions. It also created functions for the Federal and Regional Governments. The Federal Government was empowered to legislate on matters on the Exclusive List while the Regional Governments and the Federal Government had the power to legislate on matters on the Concurrent List.
It should be clear to any discerning mind that Nigeria was not truly independent by virtue of the provisions of the 1960 Constitution. It was, therefore, only a matter of time before the Nigerian politicians challenged the status quo. It was not surprising that barely three years after the 1960 independence came into force, a Republican Constitution, which excised the country from the control of Her Majesty, the Queen of England, was enacted by the Nigerian Parliament in 1963.
The Republican Constitution of 1963
The Preamble:
“Having firmly resolved to establish the Federal Republic of Nigeria,
With a view to ensuring the unity of our people and faith in Our fatherland for the purpose of promoting inter-African co-Operation and solidarity, in order to assure world peace and International understanding, and So as to further the ends of liberty, equality and justice both in
Our country and in the world at large, We, the people of Nigeria, by our representatives here in
Parliament assembled, do hereby declare, enact and give to Ourselves the following Constitution.”
The word “Republic” is a combination of two Latin words, “re”, which translates to “concerning”, and “publico”, “for the people”. “republico” in essence means, literally”, “concerning the affairs of the people”. A Republic is, therefore, a state where the people direct their own affairs through their elected representatives. The republic does not depend on any external authority to legislate on any matter. It is self-governing.
The 1963 Constitution inserted the word “Republic” with the name of the country, Nigeria. The country became a republic by virtue of section 2 of the Constitution. This was the first time that the people of the country enacted a law to govern the land through their representatives. The Queen of England ceased to be the head of both the executive and judiciary. The Privy Council, aptly described as the “Queen-in Council”, was no longer the final court in the land. This new Constitution also created another Region, Mid-Western Region, carved out of the defunct Western Region.
Another remarkable feature of this Constitution was the powers given to the Regions to enact and operate their own constitutions. The caveat, however, was that these regional laws were inferior to the Federal Constitution. Sections 1 and 5 made abundantly clear that in case of conflict between any regional enactment and the federal law, the former was void to the extent of the inconsistency.
There were other provisions considered fundamental. For instance, Chapters II and III dealt with citizenship and human rights. Section 34 of Chapter IV created the office of the “President of the Republic, who shall be elected to office…and shall be the Head of State of the Federation and the Commander-in-Chief of the armed forces of the Federation.” Section 35 provided for an election through “secret ballot at a joint meeting of both Houses of the Parliament held for the purpose of electing the President” who was to be in office for 5 years. This was a clear departure from the 1960 Constitution which had the Governor General as a mere appointee of the Queen at whose pleasure he held the office. The President and his Ministers exercised executive powers by virtue of section 84. Section 157 ensured that Dr Nnamdi Azikiwe, who was the Governor General elected under the 1960 Constitution, was deemed elected as the President from the commencement of the 1963 Constitution.
Section 41 provided for the establishment of a Parliament of two Houses, Senate and House of Representatives. Twelve Senators represented each of the four Regions. They were to be selected from among persons nominated by the Governor at a joint meeting of the legislative Houses of each Region. Four Senators also represented the Federal Territory. The President also selected four Senators based on the advice of the Prime Minister. Section 46 provided that a non-member of the Senate could be appointed by members of the Senate as their President, provided the person was qualified to be selected as a Senator, ab initio. There 56 selected Senators in all.
The House of Representatives consisted of three hundred and twelve members. Section 47 provided that the person selected as Speaker did not have to be a member of the House. Section 88 also provided that the Federal Attorney General should be a member of the House of Representatives, if he was not a member. The members of the House were elected by eligible voters.
Section 68 gave the President the power to use his discretion “at any time prorogue or dissolve” the Federal Parliament. Section 4 enjoins him to defer to the advice of the Prime Minister in doing so. Section 68(5) provided that the President had a responsibility to dissolve the House if the members passed a vote of no confidence on the government. He might also act if the office of the Prime Minister was vacant and he imagined that there was “no prospect of his being able, within a reasonable time, to appoint to that office a person who can command the support of the majority of the members of the House of Representatives.”
The 1963 Constitution provided for the Parliament to legislate on any issue “included in the Legislative Lists” and “for the peace, order and good government of the Federal Territory with respect to any matter, whether or not it is included in the Legislative Lists.” This document was not perfect but it, at least, took cognizance of the fact of our divergence and the need to allow each Region soar at its own pace following its peculiarities. Nigeria was beginning to take her place as the most populous, nascent but promising country on the African Continent when the military struck in 1966.
The Military Interregnum
Democratic features were beginning to flower in the country, despite the crises in some parts of the country, especially the South West Region, before the military struck on the 15th January, 1966. The political system inherited was jettisoned and replaced with the command and coerce style of the military. Decree No. 34 of 1966 introduced a unitary system effectively. All the regional structures were dismantled. The counter coup of 29th July, of the same year put the final nail on the coffin of the emerging federal structure. This was the genesis of the current challenges being encountered in the country.
Nigeria battles with issues threatening her continued existence as a corporate entity because of the series of errors of judgement committed by the military. Major General Aguiyi Ironsi abolished federalism and introduced a centralized system of government. He did not spare any serious thought on our peculiarities as diverse peoples of different backgrounds. General Yakubu Gowon followed the destructive path trodden by his predecessor in office. he abrogated the provinces created and carved out 12 states from them. He maintained the centralized structure.
General Gowon was toppled on the 29th July, 1975 and General Murtala Muhammed took over as military Head State. He also created 19 states from the existing ones with a promise to hand over in 1979. He was killed barely six months after he assumed office. General Olusegun Obasanjo succeeded him and handed power to a civilian regime headed by President Shehu Shagari on the 1st October, 1979. A new Constitution, the 1979 Constitution came into force on the 1st October, 1979. Nigeria had settled for the presidential system of government and there was the office of the President, with executive powers, at the federal level and governors in each of the 19 States of the federation. There was a clean break from the parliamentary system. This civilian administration lasted for just four years. The military came back on the 31st December, 1983. This last incursion took another sixteen years before a return to civil rule in 1999.
Major General Muhammadu Buhari (Rtd) became the Head of State and Commander-in-Chief between 31st December, 1983 and 27th August, 1985 when he was toppled in a palace coup. General Ibrahim Babangida (Rtd) conducted the longest transition programme in the history of the country. He was forced to “step aside” on the 26th August, 1993 after the annulment of the June 12 presidential elections won by late Chief M.K.O Abiola, GCFR. The contraption called Interim Government head by Chief Earnest Shonekan, was established by the departing military government of General Babangida.
The political melodrama lasted for 83 days before General Sani Abacha took over as the new Head of State on the 16th November, 1993. He stayed in office for another five years till he died on 8th June, 1998. He attempted transmuting from a military Head of State to a Civilian president. He had brought out the draft copy of the so called 1989 Constitution which was to have heralded a civilian government in 1993. He rechristened it 1995 Constitution in preparation for his becoming a life president. He died in the process.
General Abdulsalami Abubabakar (Rtd) became the military ruler for eleven months, June 8, 1998 to May 29, 1999 when he handed over to a civilian regime headed by retired General Olusegun Obasanjo. What became the 1999 Constitution was a bad copy of the 1989 Constitution which was also an almost complete rehash of the 1979 Constitution. The 1963 Constitution thus remains the only document which truly had the people inputs through their representatives.
REDESIGNING A CONSTITUTION FOR THE PEOPLE
Democracy operates, presumably, on the principles of freedom to choose representative leadership, reflective of political alignments as dictated by current exigencies, a group’s exercise of considerable control on socio-economic activities and preservation of its identity as a component unit within a broader political entity. It is permissive, on a liberal scale, of the rights of individual citizens. It also imposes duties and places checks on propensities towards licentiousness.
A democratic system can only be effective to the extent to which the legal processes driving it are structured. The Constitution of a country is the basic law. The aspirations, anxieties and expectations of a political entity must be well captured in the document. All other laws must flow from this legal fount. It is not important for a constitution to be voluminous. It should be concise and written in a simple but elegant prose. It should leave no section of the country, for which it is designed, in doubt as regards inclusivity. All component units must participate as equal partners.
The current agitations in the country are pointers to the necessity and exigency of fundamental adjustments in the Constitution of the country. The situation calls for a reappraisal of all claims and counter claims of the major groups in the country. The constitution review committee of the National assembly has a patriotic duty to ensure that all submissions on the proposed constitutional amendments are scrutinised and analysed with a view to coming up with useful suggestions.
It is an indictment of sort on the members of elite class to have allowed the current situation to endure. It mirrors the depth of our understanding of politics and political processes. We operate a Constitution daubed federal with all trappings of pretension. Ours is about the only federalism which allows the central authority to control virtually all aspects of existence which give identities to the federating units. And now that we are faced with serious security challenges, we must be bold to consolidate on the initiatives undertaken by the States to complement the efforts of the security agencies at the centre.
Consequently, we hold and submit as follows:
Devolution of Powers
A federal system of government must have coordinate component units with shared responsibilities. No section of the federation must be treated as subordinate and/or unimportant by virtue of size in terms of demography and geography. The government at the centre must be made to shed the excessive weight under the yoke of which it groans at present, while it still seeks to grab more powers. The States of the Federation, as constituted at the moment, are not designed for effective and efficient service delivery to the people.
They grapple with issues of scope, with regard to operations, in all ramifications. The Governors, elected representatives of the people, are treated worse than school prefects in many ways. They have no real powers to decide on socio-economic issues bordering on economy, security and even education. The system is so stultifying that there are no serious laws arising from the need to address peculiar challenges in their various states.
The State Governors are the fabled Chief Security Officers who are only called upon to preside at state security meetings and provide logistics, a euphemism for huge contributions to security agencies for maintenance. No Governor has any control over the Commissioner of Police or officers under his Command on postings or anything. These security officers report, routinely, to Abuja on everything. State Governors are emasculated, effectively, on all fronts.
The 1999 Constitution, as amended, ensures that all matters, ranging from those on the Exclusive list, Concurrent List, and even the so-called Residual List, are legislated and acted upon by the Federal Government. No area of socio-economic development is spared. The Government at the centre replicates every department meant for service to the people. from mining, commerce to culture and tourism, the Nigerian State runs a large bureaucracy which is moribund and ineffectual. Even Local Government administration is not spared.
It is only in the Nigerian Constitution that the names of 774 Local Governments are enshrined. Nothing best captures the helplessness of a Governor than a system which allocates monies to the Local Government Administrations, not on the basis of revenue generation or special needs, through the States, but the seeming misapprehension of issues surrounding the authority of the State over its territory and anything comprised within it.
The puerile submission on the overbearing attitude of Governors over the Local Governments is mischievous and ignorant. There is bound to be an impression that the Federal Government plans to use the third tier of administration in the polity to further weaken the resolve of the States to insist on devolution of powers from the centre. The Federal Government should have no direct business with Local Government administration and their names (774) must be expunged from the Constitution.
Citizenship and Place of Domicile
We recommend the deletion of the provision on State of origin to be replaced with place of domicile as a part of the overall measures to be taken in combating politics of ethnicity and favoritism which militates against merit. Citizenship should suffice for social mobility and enjoyment of social economic benefits.
The Repeal of Federal Character Act
The provision on Federal Character is obsolete and counter-productive. It must be deleted from our Constitution forthwith. It is discriminatory and retrogressive.
The Imperative of State Police
We need to reiterate the fact that a central police command in a country as large as Nigeria is not effective. We have made our position known on the necessity for every State in the Federation to have its own Police Service to the people. The inherited colonial Police Force runs an outmoded institution. It cannot serve the purpose of securing lives and property adequately. Sustaining a Police Force in a country of over 200 million citizens and inhabitants does not portray us as serious.
The noticeable lapses have compelled States to look inward for other means of complementing the already over-stretched and lethargic police institution. Let every region and sub units determine its internal security architecture. Security is, primarily, local. Nobody will deny the fact that there has been a tremendous boost in the security of lives and property since the creation of Amotekun in the South West. And contrary to the widely-held misgivings concerning its operations, there has been no report of any abuse by any South West Governor. State Police Commands must exist in a federal system.
Chapter 2 of the 1999 Constitution, as amended
The Chapter 2 of the 1999 Constitution, as amended, should be moved to Chapter 4. Those provisions are the very reasons which justify the existence of the government at all levels. These provisions must be justiciable. Our courts should be able to sanction any breach.
Zonal Judicial System
There should a zonal judicial system which will replace the present behemoth. The Federal Supreme Court should concern itself with constitutional matters and items listed on the Exclusive Legislative List. The apex Court should be unburdened and matters relating to local issues should terminate at the Zonal level.
Conclusion
The National Assembly must, as part of its patriotic assignment, repeal many laws establishing many agencies whose functions overlap or appear to compete with those of the states of the Federation. Our legislators must stop appropriating funds for the sustenance of moribund agencies of the Federal Government. There are too many of them. They should reduce, considerably, the number of items on the Exclusive List and increase those on the Residual List for proper devolution of powers.
I suggest a copious adoption of provisions in the 1963 Republican Constitution as a guide in our quest for a new socio-legal order.
If all these suggestions are considered, I have no doubt that we will reduce, drastically, the socio-economic problems which we face at the moment. Our journey towards nationhood will have commenced from point of the adoption of these submissions and many more.
I thank you all for your patience.
