02 Aug

Analysing the proposed amendments to the 1999 Constitution

The growing calls for restructuring in Nigeria, recent events, and the reactions they have spawned, have shown the Nigerian Constitution as an increasingly unworkable document. As a result, the National Assembly has commenced the process to amend the Constitution, and on Wednesday 26 July, and Thursday 27 July, the Senate and the House of Representatives voted on some of the proposed changes.

Thirty-three laws in the Constitution came up for review, and both houses of parliament agreed on most of them, but disagreed on nine key areas – a fixed number of slots for women ministers; an indigene of the FCT being appointed to a ministerial position; the change of names of some local government areas; Nigerian women having a right to chose their state of origin after marriage; the fate of the National Youth Service Corps; the National Security Agencies Act; the National Complaints Commission; the Land Use Act; and the transfer of local council elections to the purview of the Independent National Electoral Commission.

Each of twenty-four amendments that both houses of parliament agreed to will now be sent to the legislatures of Nigeria’s thirty-six states for ratification. Twenty-four states have to sign off on the amendments, and those that make it will be returned to the Clerk of the National Assembly who will then send them to the President for assent.

We believe that this process is one that needs to be watched closely, and some of the amendments which failed to pass may have to be reconsidered. Our analysis of the amendments, and our views on the way forward, are presented in this report.

Nigeria has been down this road a few times. In 2010, The 5th and 6th Sessions of the National Assembly effected some amendments of the Constitution. The 7th National Assembly set for itself an ambitious Constitution review process covering well over a hundred different matters at great cost to the public purse but the exercise yielded no real benefit for the country to the disappointment, if not anger of many. One civil society group reportedly threatened to sue the National Assembly for the refund of the sum of N4 billion allegedly expended during the duration of the exercise.

Constitutional amendments are rarely a smooth, seamless exercise. The confusion that trailed the 2010 amendment exercise, which was signed into law in 2011 by former President Goodluck Jonathan left the country’s fundamental law with three ‘Alteration Acts’ (which caused no small controversy among lawyers scrambling to figure out whether an ‘alteration’ and an ‘amendment’ meant the same things) and led a politician at the time, Olopade Agoro to quip rather infamously, “First and foremost, how will the Amended Constitution be cited? Will it be 1999 Constitution as Amended 2010 but signed into law 2011? Or will it be 1999 Constitution as Amended 2011?”. Even the Nigerian Institute of Advanced Legal Studies in 2012 solicited for input from the academia and legal commentators for input on any potential constitutional amendments in order to “reduce the frequent amendment of the Nigerian constitution”. That mission clearly did not succeed.

The 1999 Constitution has been called at various points during its lifetime “anti-federal” “rotten”, “unworkable” and a “military document benevolently bestowed on a democratic government”. The Constitution, being the fundamental law of the land holds the key and provides the framework, legal and institutional, within which national problems can be addressed and resolved. Nigeria is buckling under the weight of sluggish economic growth, near intractable security concerns and a rise in the popularity of populous, fringe political elements threatening its very existence and the intricate political threads that have held, if precariously, the country together.

The current exercise was yet another opportunity for the country to examine the adaptability of its fundamental law to the tasking and pressing demands of national governance and contemporary realities. We believe this opportunity stands the risk of mirroring its 2010 cousin, failing to satisfactorily address the core problems of the country. Nigeria’s governing structure in practice has not substantially changed since the institution of a unitary arrangement by the military in 1966 – probably that institution’s most consequential act in the country’s history. The country’s democrats must find a way to construct a proper federal state based on social justice, equity and merit, as intellectually articulated by the country’s founding fathers. The buck now falls on Nigeria’s states, hardly considered as bastions of governing best practices, most of which are financial squeezed and net negligible contributors to the country’s continued democratic evolution to rescue an exercise that runs the risk of being yet another inconsequential footnote in Nigeria’s unfolding history.

Download the report (34 pages)