Should Nigeria Discard The 1999 Constitution?
By Mujib Dada-Qadri Esq
If the 1999 Constitution of Federal Republic of Nigeria was to be a wife in a polygamous marriage, it would have rebelled and bite the husband in frustration. 1999 Constitution has been scandalized for being not just an “unwanted wife” but also a source of misfortune. The challenges bedeviling Nigeria despite being largely man-made and economical have been totally blamed on the 1999 Constitution and chief of these blames seem to be the illegitimacy of the constitution, best symbolized as an “unwanted wife”.
The question of legitimacy
The challenges trapping Nigeria should not only be x-rayed within sociological lenses but within of lenses of jurisprudence too. John Locke in his advanced analysis of Social contract justified legitimacy of government on the “consent of the governed”. Jean-Jacques Rousseau, a celebrated French social philosopher and romanticist whose works on social contract and political theories on state legitimacy were burnt for being against orthodoxy and recognized only after sixteen years of his death in France. Rousseau justified legitimacy based on social contract, a deposition of trust and sovereignty of people in a state cemented through mandate/consent of the people. A fantastic German sociologist called Max Weber went further and a bit different from Locke and Rousseau on theories of legitimacy by introducing us to three sources of legitimacy which are traditional, charismatic and rational-legal. Traditional legitimacy justifies monarchy by inferring it’s legitimacy of old acceptance of norms and justification of history. Charismatic legitimacy justifies legitimacy on the emergence of a charismatic leader in saving the state due to failures of institutions and rational-legal legitimacy is the most similar to the works of John Locke justifying legitimacy with the “consent of the governed”.
“We the people” and legitimacy of 1999 Constitution.
United States of America will remain the biggest inspiration to republicanism and democracy globally, the reason being that it is the inventor of innovatively refined democracy and the oldest. America’s Constitution which has not only inspired the world but particularly inspired the Nigeria’s presidential system of government sourced it’s legitimacy from 55 delegates in the summer of 1787. It must also be stated that only 39 actually signed the Constitution after rancour and compromises allowing slave ownership and limited right to vote. It used to be my watery imagination that all citizens of USA at that time converged for the drafting of the constitution and that qualifies “we the people” mantra. The same Constitution has gone through over 20 rigorous ammendments and still legitimately evolving and scouting for perfection.
Hence, the question of legitimacy of 1999 Constitution of Federal Republic of Nigeria will naturally arise. Historically, evolution of Nigeria’s constitution whether pre-colonial or post-colonial experienced it’s most remarkable legitimacy in the 1979 Constitution which paved way for indigenously crafted republican constitution through a robust Constitutional Convention chaired by reputable FRA Williams, a legal luminary. Though, it was inspired by a military regime but it’s legitimacy and democratic elements cannot be trashed. The sophistication of 1979 Constitution could not save the country from another military coup. 1999 constitution was necessary to usher us into a fresh democratic dispensation despite similar constitutional drafts prepared during military dispensation of Ibrahim Babangida and Sanni Abacha. It is believed that the military regime of Abdul Salam Abubakar encouraged the speedy drafting of 1999 constitution to fast track transition into 1999 democratic administration and avoid another foreseen or unforeseen coup. In the words of Justice Niki Tobi who chaired the drafting of 1999 constitution; “In the light of the memoranda and the oral presentation on the 1995 Draft Constitution, it is clear that Nigerians basically opt for the 1979 Constitution with relevant amendments. They want it, and they have copiously given their reasons for their choice in the different memoranda and oral presentations.” If 1999 constitution sourced it’s legitimacy and built on the foundation of 1979 constitution which cannot be tagged illegitimate. Why should we rubbish the legitimacy of 1999 constitution if it’s inspiration and foundation is from 1979 constitution? Such qualification of illegitimacy is jurisprudencially wrong and best described an emotional statement.
Perfecting the imperfections of 1999 constitution.
It will be unintelligent of anyone to rate 1999 constitution as perfect but it will be ignorant of anyone to categorize 1999 constitution as illegitimate considering political philosophies and thoughts on jurisprudence cited above. Laws are products of political, social and economic evolution, how 1999 constitution can be best remodeled should be the focus now considering how it has sustained our democracy for over 20 years, a success not achieved by any Nigerian constitution. It must also be emphasized that despite the importance of National conferences/Confab or any other national dialogue, the resolutions emerging from this conferences cannot be enforced on a legitimately constituted National Assembly and State Assemblies. If the legitimacy of the National assembly is nullified like some people have suggested on the basis that it is functioning on the basis of an illegitimate constitution. Then, we will have a state in vacuum or non-existent state. South African 1996 constitution that finally ushered in a fresh democratic dispensation was preceded by an interim constitution to create a status for the State. Hence, such views are best rated as anarchical views. The imperfections in electoral legitimacy of our lawmakers or other imperfections in federalism, electoral processes, referendum etc are best reformed through these alternative processes; Section 9 of 1999 constitution specifically provided for how the constitution can be altered but the constitution can be best refreshed not trashed by amending the constitution to allow for Constituent Assembly or Constitution Drafting Committee which will serve as an interface between the people and the legitimate National and State Assemblies. Alternatively, a bill to create the Constituent Assembly or Constitution Drafting Committee and the moralities of operation will be provided for in the bill. 1988 Brazilian constitution and current Kenyan Constitution applied similar models in introducing a new constitution. Hence, the bill/ammendments is best crowned with a “plebiscite/referendum clause” coupled with modalities and establishment that will see to consent of the people endorsing the new constitution or robust amendments. In conclusion, it will be illogical and anarchical to call for an abolition of an existing constitution without dispassionate, rational and practical alternatives. It should also be reiterated that the imperfections in the 1999 constitution is not the fundamental problem Nigeria’s economic woes considering the fact that we have countries with poorer or less democratic dispensations prospering economically. Indeed, 1999 constitution is a victim “generalized blames of frustration”.
Mujib Dada-Qadri is a Lawyer and Policy Analyst.
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