The Ignored Path of the 1979 Constitution


It wasn’t a mere government sponsored jamboree that’s common in Nigeria but that was a collection of intellectuals, elites and real politicians versed in the art of politics.
It is all too common now for sundry political actors and commentators to blame the perceived and real problems, challenges and shortcomings of the extant 1999 Constitution on the structural, institutional and processual failings of the constitution itself rather than on the political actors whose responsibility it is to run the affairs of the polity in accordance with the dictates of the constitution.

Seek ye first the kingdom of a new constitution crafted to near perfection and all other things shall be added unto you is the loud and constant refrain from diverse quarters. But then, this is a road we had traversed before only to end up in the debilitating ditch of regime failure and collapse in the ill-fated first, second and now aborted third republics. This dispensation has, since 1999, mercifully lasted for over two decades of unbroken elected civilian administrations even though the most optimistic among us will be loath to aver that we have meaningfully transited from mere civilian rule to genuine democratic governance.

I have listened to several eminent lawyers, distinguished academics and influential public commentators vehemently contend that the extant 1999 Constitution is not more than a handout from the departing military regime and that it, in fact, lies against itself when its preamble describes it as a product of “we the people”. It is difficult to decipher how accurate this perception is. To the best of my knowledge, the 1999 constitution is a wholesale adoption of the 1979 constitution with minuscule amendments.

The Gen. AbdulSalam regime, which midwife the transition to this dispensation back in 1999 could easily have opted for the draft constitution drawn up under the Babangida and Abacha regimes, constitutional exercises that lacked credibility and meaningful legitimacy. Rather, AbdulSalam opted to the return to the 1979 constitution, which was drawn up with relatively high degree of popular participation and involvement of elements of the intellectual, political, business and bureaucratic elite.

Those who harbor the idealistic belief that a constitutional document for a complex, plural society like Nigeria can be drawn by the masses of the hoi polloi are living in an imaginary world. Constitution making is essentially and intrinsically an elitist affair.
Of course, the generality of the people must, in the final analysis, have their imprimatur of approval on the final document as debated and produced by the elite, but they have limited ability to make any meaningful input into its making. The collapse of the first republic in January, 1966, was blamed largely on the demerits of the parliamentary constitution and the existence of excessively powerful regions that wagged the federal system difficult to distinguish from con-federalism.

The perceived antidote to this was the reversion to the presidential model of democracy with an all powerful executive presidency with powers approaching the all pervasive suzerainty of a military monarch. Of course, the utter failure and ignominious collapse of the second republic in December, 1983, after just four years of the military’s retreat to the barracks, demonstrated that the fundamental problem was not with the constitution after all, but with both the leaders and the led, who followed its precepts and provisions more often in the breach.
In the wake of the deepening crisis of state, society and economy in post-colonial Nigeria, particularly in this fourth republic, when non-state actors and religiously motivated armed groups are engaged in a duel unto death battle with a much chastened Nigerian state, many analysis have fallen back on the ethnic mantra as the be-all and end-all solution to the current Nigerian predicament. Seek ye first and return to your ethno-regional camps o ye people and all shall, once again, be well with our land.
Nothing could be more delusional. The utter venality, moral depravity and indescribable elite greed responsible for the depressing depiction of the Nigeria as a ‘Crippled Giant’, is not the function of any single elite faction of the Nigerian polity. Let all the component geo-political and ethno-regional units of the country today retreat into their separate cocoons of self-rule and you will see the present maladies plaguing Nigeria on an even more brazen scale in the new, smaller micro-entities. No faction or fraction of the Nigerian political elite is morally fit to cast the first stone when it comes to blaming others for the pathetic state of an otherwise immensely endowed country.
This is why I continually doff my hat to two radical, progressive, patriotic and conscientious members of the Constitution Drafting Committee (CDC), set up by the Murtala/Obasanjo military government to draw up a new constitution for the country, who disagreed vehemently with the majority draft produced by their colleagues and produced a minority report, which was studiously ignored by the ruling military junta for obvious reason. The two committed, adorned and radical dissenters were the eminent historians, the late Dr Yusufu Bala Usman and Dr Olusegun Osoba.

I was lucky in the course of my research during our trying time in NADECO to have got a copy of the minority draft document titled ‘Minority Report and Draft Constitution for the Federal Republic of Nigeria, 1976’ with a new introduction by Dr Olusegun Osoba, courtesy Femi Falana (SAN). This is a book, which I believe should be widely circulated and read in Nigeria because it dispels many of the ethno-regional myths and mystifications surrounding much of the debate on the national question and the future possibilities of Nigeria.
For instance, one of the key submissions of the duo of radical, progressive and patriotic dissenters to the majority draft of the 1979 Constitution is that “We are of the opinion that, on the basis of the substantive provisions contained in the majority draft constitution, the quantum of power residing in the various levels of government is likely to move progressively in the direction of infinity while that residing in the people will tend to zero.

This is because the only symbol of power vested in the people is that exercised every four years in the act of voting in different categories of political officers at general, presidential, gubernatorial and local government levels. Our experience in the recent past would seem to us to have demonstrated beyond all reasonable doubt that this formal periodic and often ritualistic act alone is not sufficient for safeguarding genuine democracy in practice”.
In a lecture delivered in Kaduna State council of the Nigeria Union of Journalists (NUJ)on October 14, 1976, for instance, Dr Bala Usman, examining the majority provision of a strong executive presidency as an antidote to regime weakness and political instability averred that “To assert, as one newspaper has already done, that an executive presidency with full powers (whatever that means) shall provide us with strong leadership and strong government without weaknesses, power struggles or military intervention is a mere assertion of faith in a fetish, which only obscures the issues. Leaving aside the crucial question of ‘strong government’ for whose interests – a person, a clique, a sectional group, imperialism- it is surely obvious that presidency, even an executive one with full powers, is just one office in a political system. Its capacity depends on the economic and social structures and the nature of the political system”.
Continuing, Dr Bala Usman contended that “The question of the type of leadership an executive presidency or any type of executive can provide can only be answered by examining the social and political forces that are likely to emerge dominant within the framework of a constitution and then the effectiveness of the institutions (those touched on in the constitution and those which are not) established for these forces. In the context of Nigeria, the type of political parties which emerge , and the nature and orientation of the public services, are far more important in determining the capacity and effectiveness of any government than the form of the top executive office”.
In the introduction to their minority draft constitution, Usman and Osoba, contended that “As long as the huge disparities in economic power existing among individual Nigerians and social groups within the dominant free enterprise capitalist system operating in our country remain, so long will there be staggering inequalities among Nigerians in social status and political power.
While such inequalities persist, the democratic principles of equality before the law, equity and social justice can only operate slogans for mystification and confusion. Consequently, to obviate such a possibility which is bound to have for our country the grim consequences of violent social conflict and political instability, we suggest that those who aspire to leadership positions in this country must at least be motivated by considerations should guide them, as we have done in our minority draft, to provide in law (i.e the Constitution of the Federal Republic of Nigeria) Principles and Constitutional instruments that would commit our political decision makers of the future to a progressive dismantlement of the current economic system of grasping individualism”.
The language in which the draft minority constitution dwelt, is simple, jargon free and of exceptional clarity. It can easily be translated into multiple languages for the easy grasp of the vast majority of Nigerians. It motivates the deliberate obfuscations and abstractions on which brilliant lawyers thrive and in most cases, smile too often to the banks with smug satisfaction.
We are today where we are. We are told that the 1999 Constitution (as amended) is undergoing a review exercise but in the hands of politicians that lack the technical expertise of constitutional review. They are mere political opportunists that hardly understanding the technical language of a constitution left alone, to review one. We are heading to another mess!
Muhammad is a commentator on national issues

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