1999 Constitution not a fake document, by Femi Falana, SAN


It is indisputable that the people of Nigeria were not involved in the processes that led to the enactment and imposition of all the constitutions and other laws that were promulgated by the British colonial regime. Thus, the Lugard Constitution of 1914, Clifford Constitution of 1922, Richards Constitution of 1946, Macpherson Constitution of 1951, and Lyttleton Constitution of 1954 were enacted in London and imposed on Nigerians. But in order to protect the interests of the British Government and its allies at the end of colonialism, the Independence Constitution of 1960 was negotiated between the departing British colonial regime and the nationalist politicians.

Even the much-celebrated Republican Constitution of 1963 was a mere amendment of the Independence Constitution because it protected the interest of the indigenous ruling elite. Hence, the amendment of the Constitution carried out by the first set of parliamentarians was rather cosmetic. Specifically, the president replaced the British Monarch as Head of Government while the Supreme Court of Nigeria replaced the British Privy Council and became the final Court of Appeal.

However, the Nigeria Police Force, the armed forces, and other instruments of oppression established by the colonial regime were left intact to protect the interests of the indigenous ruling class while the post-colonial economy was left in the firm grip of imperialism. The anti-people’s colonial ordinances, which legitimized the exploitation of Nigeria by the British government, were adopted and reenacted as Acts of the Nigerian Parliament. No doubt, the 1963 Constitution recognized the relative autonomy of the Eastern, Western, and Northern regions as each of the regions had its own constitution and managed its own affairs within the neocolonial economic structure. In 1964, the Midwest region was carved out of western Nigeria to weaken the region as the northern and eastern regions were not split.

The manipulation of the courts and security forces by the ruling party aggravated the election violence that broke out in the western region in 1964 and the brutal killing of Igbo people in the north. Thus, the subversion of democracy and abuse of power by the chief operators of the 1963 Constitution led to a total breakdown of law and order in the country. It was under the pretext of restoring law and order that a group of young army officers led by Major Kaduna Nzeogwu seized power on January 15, 1966.

The coup plotters killed the civilian Prime Minister, Mr. Tafawa Balewa, two regional heads of government, Messrs Samuel Akintola and Ahmadu Bello, and some military officers.

The national and regional constitutions were suspended while political parties, trade unions, and ethnic organizations were proscribed. The coup plotters were overpowered and arrested by senior officers who appointed Major General Johnson Thomas Umanakwe Aguiyi-Ironsi as the Head of State. A unification decree was promulgated to abolish regional institutions and the federal system of government. There was a counter-coup in July 1966, which led to the brutal murder of the military ruler, General Aguiyi-Ironsi, and the military governor of western Nigeria, Col. Adekunle Fajuyi.this

The new Head of State, Lt. Col Yakubu Gowon, failed in resolving the political crisis. The military oligarchy ruled by decrees signed by the Head of State. Even though the military dictators claimed to have set up the Federal Military Government, it was a unitary government in every material particular. In other words, both Ironsi’s unification decree and Gowon’s supremacy decree were six of one and half a dozen of the other.

In 1967, the four regions were split into twelve states while military governors were appointed by the Supreme Military Council to govern them. The governors ruled the states by edicts. Regional institutions, including universities, radio, and television stations, were nationalized by the Federal Military Government. In 1975, the Murtala Mohammed military regime appointed a group of 49 persons to draft a new Constitution for the Second Republic. The Committee was headed by the late Chief Rotimi Williams SAN. At the end of the assignment, the committee produced two reports: the majority report prepared by 47 members and the minority report prepared by two members, namely the late Dr. Bala Usman and Dr. Segun Osoba. Since the minority report advocated for a socialist state, the Olusegun Obasanjo regime rejected it and forwarded the majority report of the Rotimi Williams group for the consideration of the constituent assembly led by Justice Udo Udoma.

Even though Chief Obafemi Awolowo declined to serve on the Constitution Drafting Committee, he lauded the body for recommending the entrenchment of chapter two in the Constitution. For him, the fundamental objectives and directive principles of state policy largely reflected the ideas canvassed by him in his book titled “People’s Republic,” published in 1966. However, upon the submission of the Draft Constitution by the constituent assembly to the regime, General Obasanjo single-handedly amended it and inserted therein four statutes, i.e., (a) the National Youth Service Corps Decree 1993; (b) the Public Complaints Commission Act; (c) the National Security Agencies Act; and (d) the Land Use Act. Even though these laws were not part of the Constitution, the purpose of entrenching them in the Constitution was to ensure that they could only be amended like other provisions of the Constitution.

Thereafter, General Obasanjo enacted the Constitution (Promulgation) Decree No 104 of 1979. Thus, the Second Republic was operated under Decree 104 of 1979, otherwise called the 1979 Constitution.

When the military sacked the civilian government again in December 1983, the 1979 Constitution was suspended. As part of the preparation for the restoration of civil rule, the 1989 Constitution was written by a Constituent Assembly led by Justice Anthony Aniagolu under the Ibrahim Babangida military junta. But, due to the annulment of the election won by Bashorun MKO Abiola, the 1989 Constitution never came into force. As General Babangida was forced to step aside, his plan to metamorphose from a military dictator to a civilian president failed to materialize. The plan of his successor and comrade in arms, General Sani Abacha, to have himself elected as a civilian president also failed. Hence, his 1995 Constitution did not see the light of day.

The last military ruler, General Abdulsalami Abubakar, repealed the suspended 1979 Constitution and imposed the 1999 Constitution on the nation via the Constitution (Promulgation) Decree No 24 of 1999. The committee that drafted the 1999 Constitution was headed by a famous jurist, the late Justice Niki Tobi. Even though the 1999 Constitution was not prepared by a constituent assembly, it is a replica of the 1979 Constitution in every material particular.

It is on record that the late Chief Rotimi Williams SAN once described the 1999 Constitution as a fraudulent document for telling a lie about itself. As far as Chief Williams was concerned, the Constitution was imposed on Nigerians, though the preamble stated that it was made, enacted, and given to the Nigerian people. In the same vein, Chief Wole Olanipekun SAN has insisted that the Constitution is a fake document. With respect, the Constitution is neither fraudulent nor fake as its authors are well known. Indeed, in several judgments delivered by the Supreme Court and other courts since 1999, the Constitution has been described as the grundnorm of the Federal Republic of Nigeria.

Since the Constitution protects the interests of the ruling class, the National Assembly and the Houses of Assembly of the 36 states of the Federation have resorted to regular amendment of some provisions of the document. The said amendments have also received judicial imprimatur. To that extent, it is not legally correct to say that the Constitution is fraudulent or fake

In making a strong case for a new Constitution that will reflect the democratic wishes of the Nigerian people, it ought to be pointed out that there are some provisions of the 1999 Constitution that cannot be wished away. They include chapter two (sections 13-24), culled from the 1979 Constitution, which contains the fundamental objectives and directive principles of state policy. Despite its limitations and contradictions, the chapter provides for participatory democracy, adequate security and welfare for the people, adequate housing, employment, and payment of unemployment benefit for unemployed people, payment of a national living minimum wage and pension, right to education at all levels, and right to health.

In particular, section 16 of the Constitution provides that the resources of the nation shall be controlled by the government and be equitably distributed among the people and that the commonwealth shall not be concentrated in the hands of a few people or a group. The provisions constitute the core of the socioeconomic rights of the Nigerian people. Even though the provisions are made non-justiciable, several laws have been enacted by the National Assembly to actualize certain provisions of chapter two of the Constitution. In a number of public interest cases, the courts have upheld the rights of Nigerian people under such welfare laws. It is interesting to note that the members of the 2014 National Conference unanimously recommended that the fundamental objectives and directive principles be made justiciable in the Constitution.

Under the defunct military junta, the central military government took over the control of the national economy. By fiat, the principle of derivation was jettisoned while the states were run as extensions of the central military government. The 1999 Constitution has challenged the absolute control of the central government in the management of the national economy. To that extent, no constitutional arrangement can jettison section 162 of the Constitution, which states that “the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources.”

This is unlike section 140 of the 1963 Constitution which merely provided derivation of “a sum equal to fifty per cent of (a) the proceeds of any royalty received by the Federation in respect of any minerals extracted in that Region; and (b) any mining rents derived by the Federation during that year from within that Region.” The point that I am struggling to make is that the 13 percent derivation from revenue in section 162 of the 1999 Constitution is much higher than the 50 percent derivation from royalties and rents in the 1963 Constitution. Furthermore, the states that are entitled to the 13 percent derivation are equally entitled to a share in the monthly statutory allocations distributed to the three tiers of government by the Federation Account Allocation Committee.

The campaigners for restructuring have argued that the development of the regions before military rule was based on the 50 percent derivation applicable under the 1963 Constitution. This is misleading as the development of the regions was based on the huge revenue derived from agricultural products like cocoa, cotton, and palm oil. Agriculture, which was the mainstay of the economy, got a boost from the regional commodity boards which protected the interest of farmers. But the boards were abolished in the late 1990s as part of the conditionalities of the Structural Adjustment Programme. Unaware that the Commodities Board Act has not been repealed, Vice President Shetima recently announced that the federal government would soon set up a new National Commodity Board.

Even though President Buhari was opposed to restructuring, the devolution of powers recorded under his regime has been the most profound since 1999. Items like electricity, railways, and prisons which were in the exclusive legislative lists have been transferred to the concurrent legislative list. The implication is that states have been empowered to legislate in these areas for the overall development of the country. The financial autonomy of the state legislature and judiciary has also been restored by another constitutional amendment. No doubt, solid minerals are in the exclusive legislative list. But state governments and individuals are given licenses to mine them and pay royalties to the Federation Account.

Before then, licenses for oil blocks were awarded to a few registered corporate bodies and state governments which were required to pay signature bonuses and royalties to the Federation Account. The trend is going to continue as the Bola Tinubu administration has already awarded many oil blocks and granted licenses for solid minerals. Plans have also been concluded to amend the Constitution to pave the way for the establishment of state police in response to the worsening security crisis plaguing the nation.

It is pertinent to note that the main disputed area among the political class is whether the Constitution should provide for a presidential or parliamentary system of government or whether the country should have strong regional governments and a weak center. A fresh agitation has also arisen in the Niger Delta region for resource control in view of the decision of the federal government to allow state governments and private companies to mine solid minerals and pay rents to the Federation Account. In other words, the oil and gas producing communities have demanded to control the resources and pay rents to the Federation Account.

In view of the foregoing, it is crystal clear that the members of the political class have resolved not to discard or throw away the 1999 Constitution because it protects their class interests. This explains the regular amendments of the Constitution by every session of the National Assembly and houses of assembly of the states. In fact, each house of the 10th National Assembly has set up a constitution review committee for the purpose of further amending the Constitution. It is expected that the review will lead to another alteration of the Constitution.

No doubt, the country needs a new and popular Constitution prepared by the accredited representatives of workers, women, youths, physically challenged people, and other interest groups. But a new Constitution that is democratic, inclusive, and transparent can only emerge from the struggle of the Nigerian people. Therefore, it is indubitably clear that without a revolution to herald a new legal order, no new constitution will emerge in Nigeria.

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