Nigeria Does Not Need A New Constitution -By Obi Nwakanma

At the 2023 Convocation lecture of the Afe Babalola University in Ado Ekiti, Mr. Chukwuemeka E. Anyaoku, former Nigerian Minister of Foreign Affairs, and former Secretary General of the Commonwealth canvassed for a new constitution for Nigeria. The distinguished former diplomat said, in the body of his lecture:

“The essence of the new Constitution should, in recognition of the crucial principle of subsidiarity in every successful federation, involve a devolution of powers from the central government to fewer and more viable federating units with strong provisions for inclusive governance at the centre and in the regions as was agreed by Nigeria’s founding fathers.”I refer particularly to this statement because it contains certain key ideas and references which should be carefully unbundled.

The first is that crucial principle of “subsidiarity” which Mr. Anyaoku mentions, and presumably of “proportionality” attendant to it. The second is the reference to the agreements of the “founding fathers” regarding the foundational structures of the sovereign nation. The idea of subsidiarity, a key principle in the legal system that establishes the European Union, refers to the exercise of competencies.

In effect, under the Treaty establishing the European Union, Subsidiarity as laid down, defines the circumstances “in which it is preferable for action to be taken by the Union, rather than by the member states,” particular in such areas in which the European Union does not have, nor exercise, exclusive competence. Subsidiarity flows from the idea that all human political and social issues must, and can be resolved at the most basic levels of locality. This is a key question of federalism: the location of actual power.

The objective of Subsidiarity, at least in the context of the European Federation is to ensure that “power is exercised as close to the citizens as possible, in accordance with the proximity principle.” Mr. Anyaoku also referred to the sovereign compact of the founding fathers of Nigeria, who agreed on “fewer and more viable federating units,” all of which, leading to 1963, gave us the Constitution of the Republic.

That constitution, Mr. Anyaoku averred in his Ado-Ekiti lecture, served Nigeria well, addressed Nigeria’s diversity which it recognized as its strength, and took Nigeria towards the path of growth and prosperity. According to Anyaoku, under the 1963 Constitution, there was security of life and property, there was a faster pace of economic development, and there was unleashed, healthy regional competition which drove this rapid development and growth from which the nation benefited. All that changed with the military intervention of 1966, Anyaoku said, which shattered, not only the peace, but the trajectory of growth.

In its place, it gave us this “path of Thunder,” to quote my favorite poet, on which we continue to travel: unprecedented level of divisiveness, and an economy in the doldrums, with over 135 million Nigerians now in what experts like these days to call, “multidimensional poverty.” Well, even that phrase itself, puts a gloss to that condition of poverty. My Igbo people have a far more colorful way of describing that kind of poverty: “Ogbenye Onu Ntu,” they call them. People so poor, they have “ash-colored mouths.”

That’s what Nigerians have become, because we veered from the path of the old constitution. I would like to take a quick step back, and contend with this highly respected Nigerian statesman, Mr. Anyaoku: I agree with him on certain levels, but I fundamentally disagree with him on a number of critical levels. I believe like Mr. Anyaoku that we must strengthen the principle of subsidiarity in the Nigerian constitution, through a review of the competences under devolution, and that we must as a matter of urgent necessity, constitutionally reduce the number of the federating states of the Union, in order to create and sustain more viable states of the union.

This is urgent. But it does not require a new constitution, and I shall come back to this point. I should say, just to preface my contention, that the former Commonwealth Secretary General seems to romanticize the 1963 Republican Constitution, and the era of its operations, a tad too much. That Constitution operated for just under two and half years. The Nigerian Republican Constitution was passed by Nigeria’s Sovereign Parliament in October 1963, to take effect on November 16, 1963, on the day the Nigerian President was inaugurated.

They key changes of that constitution from the Independence Constitution of 1960, was that it endowed all executive power of the state in the office of the President of the federation, and no longer in Parliament. It literally turned the Prime Minister, into the President’s chief Adviser, and leader of his government in the Parliament.

Basically, three powers were established by 1963 Constitution: the enormous power of the President, the power of the Parliament, and the power of the Supreme Court. The Supreme Court became the final court of sovereign arbitration; no longer, the Privy Council sitting in London. Nigerian Constitutional historians know this fact, although they have chosen often to stay quiet and perpetuate the silence about the fact that it was Azikiwe that was overthrown in the January 1966 coup.

The parliament remained intact, but conceded its sovereign authority, Nwafor-Orizu says under compromise, Shagari says, under threat, to the Army in January 1966. Mr. Anyaoku knows, being himself a mid-career diplomat, or Foreign Service Officer in the Nigerian Ministry of Foreign Affairs and Commonwealth Relations as it was then known, who had just been seconded to the Commonwealth Secretariat at the time, that Azikiwe’s “wily” ascension to executive power, and the slow dawning of the fact of the Prime Minister’s relegation and increasing powerlessness under the 1963 constitution, triggered the North and her allies, chiefly Great Britain, into using the 1963/64 Census and Federal elections to checkmate the power of the president, which spiraled into the conflicts that led to the two coups. But this is story for another occasion.

The point I am trying to make nonetheless is that it is not the constitution that is really Nigeria’s problem. It is its operations and enforcement. The 1963 constitution remains, aside from the switch from the Parliamentary to the Presidential system, the template for all subsequent constitutions in Nigeria. Even as we speak, and even as flawed as it is, the 1999 Constitution flows from the essential pillars of the 1963 Constitution. It establishes the Sovereign entity called Nigeria as a secular democracy to be governed as a Federation of states.

In other words, it recognizes Nigeria as a Federal state. It devolves power constitutionally to three units of the federation: the federal government, the states, and the local government. Talk about the principle of subsidiarity. It guarantees the equality of citizenship. It encodes a bill of Rights, and a charter of freedoms, which includes the right to life, the right to conscience, the right to free assembly, the rights to vote and be voted for wherever you are as a citizen of this federation, and those other fundamental human rights necessary for the wellbeing of a protected citizen under the constitution, including the right to economic self-determination and to property.

Looked at very closely, there is nothing under this Nigerian constitution that is anti-human, or anti-citizen. I contend therefore that we have a working document. A living document. Nigeria does not need a new constitution. This call for “a new constitution,” and for what has often been routinely called “true federalism” is a ruse.

Nobody has been able, among those who call for it, to define what actually is “true federalism.” Some call it “fiscal federalism,” which is another ruse for an unproductive sharing formula for the elite, who see Nigeria, not as a whole, but only in parts. I watched Dr. Tunji Abayomi laboring to, but ultimately unable to answer a very crucial question about his concept of federalism, and the fate of Yugoslavia under different leaders, between Tito, who balanced the federation, and Milosevich who instigated ethnic nationalist conflicts that led to war and to the disintegration of the old Yugoslavian federation. He wants to organize another elite banquet to meet and agree on a constitution for Nigeria.