Professor Ben Nwabueze, the leader of the Patriots, dissects Nigeria in a keynote address at the National Summit on the Future of the country. Extracts:
The paramount needs of Nigeria are clearly identified, namely stability (which is the product of peace and security), progress (which is here used in the wide sense defined in the dictionary as “growth, development, advancement or a forward course of action”); and national unity or nation-building, all three of which are products of good governance and good leadership.
These needs, intractably challenging as they are, given the present circumstances of the country, are by no means unattainable, but their attainment entails and imperatively demands, among other things, National Transformation. What, then, does National Transformation itself entail and demand?
TRANSFORMATION AGENDA INADEQUATE
The Transformation Agenda of President Goodluck Jonathan’s administration is inadequate because of its limited objectives. To begin with, it focuses only on the economy. Even as limited to the economy, it does not aim at a radical change in the nature or character of the economy. Its aim, as stated in its enabling Document, is to engender economic growth and development in a way to achieve improvement in the welfare of the citizens. It hopes to do this by a new approach in the management of the economy aimed at rectifying “the lack of continuity, consistency and commitment to agreed policies” that charaterised past approaches and constituted serious flaws in them.
The objective of enhancing economic growth and development is to be pursued by providing “a suitable environment for productive activities to flourish”, and the provision of suitable environment will be by means of “priority policies and programmes involving the diversification of the economy away from oil” by energising such other sectors as manufacturing, agriculture, solid mineral and the service sectors. The Transformation Agenda makes the Nigerian Export – Import Bank – (NEXIM) – the principal instrumentality for its implementation. There is so much talk in the enabling Document about how NEXIM is to accomplish the goals of the Agenda.
Such being the goals and modalities of the Transformation Agenda, the question immediately prompted is as to what is transformational about it. A new approach in the management of the economy cannot, by itself alone, impart to the Agenda a transformational character. The word “transformation” means, according to the dictionary definition of it, “a change in condition, nature or character of a thing”; a “change into another substance”.
A new approach in the management of the economy may well bring about a great improvement in the economy in the form of enhanced growth and development and welfare services, but such improvement cannot in any meaningful sense be described as changing the Nigerian economy into something radically different in nature or character or “changing it into another substance”. Transformation, because of the radical nature of the change it brings about, necessarily imports a revolutionary change; it is inseparable from the notion of a revolution. It is therefore a misconception to call President Goodluck Jonathan’s Agenda a Transformation Agenda.
MORAL, ETHICAL TRANSFORMATION
The Transformation Agenda is inadequate for another, more fundamental reason. It has absolutely nothing to do with, not a word to say about, the transformation of our society from the moral decadence into which it has sunk. No Agenda, in the context of Nigeria, is worth being called a Transformation Agenda which does not aim at the moral and ethical transformation of our society.
Its focus must embrace the entire society or nation, not the economy alone. What this country desperately needs is national or social transformation, not just economic transformation. I can think of nothing more disastrous for this country than an enhanced economic growth and development built or superimposed upon a morally and ethically decadent society, a society bereft of a sense of justice, probity, integrity, accountability, civic virtues and noble values.
The Vice-President, in a speech at the Obafemi Awolowo Prize for Leadership Award Ceremony on 6 March, 2013, said that Government planned, as part of the Transformation Agenda programme, to establish mega universities, each of which can take up to 200,000 students. The establishment of such universities will be a disaster, a disastrous misplacement of priorities, when it is taken in the context of the incredible decline in educational standards in the country as attested by the phenomenon of near-illiterate university graduates, the existence of “magic schools” all-over the country whose students are guaranteed automatic success in the school certificate examination, not of course by merit; certificate racketeering; examination malpractices; etc.
National or social transformation implies the creation of a new society. The creation of such a new society would entail change of two types – a radical transformation of the material conditions of society and what has been called an ”inner mutation”, i.e. a spiritual or mental transformation in the attitudes and behavoural patterns of the individual members of society.
The “inner mutation” called for goes beyond transformation in mental attitudes, and must extend to radical change away from the present prevailing moral degeneracy or moral bankruptcy, as manifested in crimes involving fraud or dishonesty, like examination malpractices and certificate racketeering; corrupt practices in all its forms, including bribery and money laundering; sexual immorality; juvenile delinquency; etc, all of which, in the main, originated or become accentuated in the unbridled quest for money and the money culture it gave rise to.
Undeniably, the new society to be created in the wake of such national transformation and comprising all the elements described above implies a social revolution, which must embrace a revolution in morals, that is to say, an ethical revolution.
In this country, the word “revolution”, irrespective of the context in which it is used, conjures in the minds of people the spectre of bloody violence, but it is not, and need not necessarily be so. As with Karl Marx himself, a social revolution in his conception does not necessarily imply a civil war or violent revolt by the oppressed and exploited classes, although he does not also exclude the use of violence should it become necessary.
In Nigeria as in the rest of Africa, the use of violence may turn on how and desperate the situation is, the feasibility of a common violent action in a society divided by fundamental cultural or racial differences; it may also turn on whether the violent action is spontaneous or not, and the chances of success. The moral justification of violence itself as a means of bringing about radical social change, even in the fight for liberation from an oppressive colonial regime, is not free from disputation.
While it is not proposed to enter into a discussion of the issues raised by a violent revolution, I am not unmindful of its evil consequences. A violent revolution is too much of an ill wind that lumps all together, the good and the rotten, the selfless and the corrupt looters, for indiscriminate buffeting or liquidation. A peaceful revolution led by a ruler suitably fired by a revolutionary fervour is preferable; exceptionally, however, violence may be justifiable where the situation is so hopeless and rotten as can only be cleansed by blood.
For the present, unless the situation deteriorates to a point where the mood and reaction of the people can no longer be controlled, what I advocate for Nigeria is a peaceful, non-violent social and ethical revolution led by a person imbued with a revolutionary ardour for national transformation. And I implore Mr President, Dr Goodluck Jonathan, to lead it.
THE STEP TO REVOLUTION
A necessary initial step in a social and ethical revolution is to mobilise the people, men, women and the youths, for it. Mobilising the people to the banner of a social and ethical revolution is an ardous and challenging task, but it is one that must be taken on by the leader, as without it the revolution cannot even begin. The President, as leader of the revolution, must move round the country addressing huge crowds in an effort to sensitise the people and rally them in support of the revolution. I assure him that I and other members of The Patriotsand Project Nigeria will be by his side in any such public rallies, and will join in addressing the crowd.
Nigeria is a wobbly state in part because it stands on a very weak foundation, which creates a necessity to transform it. The foundation of a polity or state, that is to say, its super-structure, is its constitution. A polity or state rests on a very weak foundation if the source of authority of its constitution, as the supreme law of the land, is not the people directly, acting in a constituent assembly (or a national conference) and a referendum; that is what characterises a constitution as a democratic one, otherwise called a People’s Constitution.
It is true to say that, since the democratic revolution that swept across the globe from 1989, most countries of the world, certainly more than 85 per cent of them, Nigeria not included, accept and implement the democratic notion of the people as the source of authority of the constitution as the supreme law of the land.
The Nigerian Constitution 1999, following the 1979 one, does contain a definition and affirmation of aspirations, aims and objectives in its chapter 2, in particular the affirmation in section 14(1) & (2) that “the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice”, and that “the security and welfare of the people shall be the primary purpose of government.” In view of the fact that the Constitution was made, not by the people, but by our military rulers (or in the case of the 1960 Constitution) by our colonial masters, the aspirations, aims and objectives in section 14(1) & (2) above need re-affirmation by the people at a National Conference.
A National Conference will also provide an occasion for a re-examination of the declared objectives to confirm that they are truly an authentic embodiment of the country’s aspirations and command acceptance by the generality of Nigerians.
A National Conference is necessary as a means for us, under the leadership of Mr President, to chart a new course of life for ourselves, to create, as it were, a New Society, which would be a Just Society, and would be free of the prevailing moral degeneracy of the present. The imperative necessity for a New Society, which would be a Just Society, makes it imperatively necessary that the people of this country should come together in a National Conference to deliberate on how such New Society can be brought into being.
A National Conference would provide a platform for Mr President to speak directly to the peoples of Nigeria, to enkindle in them a feeling of common nationality, which is presently only in an embryonic state; to enkindle in them a unifying sense of a common destiny fired by the cohesive sentiments of patriotism.
In the words of Barack Obama in his book, the Audacity of Hope (2006), pages 8 and 55, a nation, such as we want Nigeria to become, is a society held together by “a common set of values and ideals” rooted in the “hearts and minds” of its members and serving to “inspire them to pride, duty and sacrifice on behalf of the country.” The National Conference would thus be a historic milestone in our search for, and march to, a common nationality, which has so far eluded us.
BETWEEN NIGERIA AND AMERICA
The character of the ethnic groups in Nigeria, and in the rest of Africa, as different peoples or different nationalities, is an important respect in which the society of the state in Africa differs fundamentally from that of the state in the United States of America and Europe. Whilst each of the original thirteen colonies and, even more so, each of the fifty States that make up the United States today, comprises people of different languages, races, religions and cultural backgrounds, each of the different people does not, by and large, inhabit a separate territorial area as to constitute a separate territorial entity; as is the case in Africa.
The diverse ethnic groups comprised in the state in Africa, as, for example, the Hausa/Fulani, Yoruba, the Igbo, the Ijaws, the Urhobos, the Itsekiris, the Efiks, the Ibibios and other ethnic groups in Nigeria, inhabit each a separate territorial area, which constitutes them a separate territorial entity. Creating a nation out of a diversity of peoples each inhabiting a separate territorial area and constituting a separate territorial entity confronts a problem fundamentally different in nature and character from that faced by the Americans since 1787.
Therefore any drive in this country towards building or creating a New Society, a New Nigeria, would be sheer self-delusion if it did not recognize the character of the ethnic groups as separate nationalities or if it tried to obliterate them completely. In any drive towards the creation of a nation out of a diversity of ethnic groups existing as separate territorial entities, the existence of such groups should be openly and frankly recognised as a social reality that can no more be wished away or banished than we can disregard our own individuality.
The crucial point emerging from what is said above is that a National Conference is envisaged as a means to trigger the process of national transformation which inexorably involves change of a revolutionary kind. The revolutionary change implied will be a peaceful, non-violent one to be led by a person imbued with a revolutionary ardour. Mr President, Dr Goodluck Jonathan, is implored to lead it, as he has already inaugurated a Transformation Agenda. The National Conference needs to be held as speedily as possible, at all events, long before 2015, as any attempt to hold the 2015 elections without first convoking the Conference may spell disaster for the country.
CREATING A NATION
Creating a nation (nation-building) from a large expanse of territory – in the case of Nigeria, 913,073 square kilometers (356,669 square miles) – comprising 389 different ethnic groups is among Nigeria’s intractable and daunting problems, clearly the most basic of all. It is more basic than all the others in at least two senses. First, it lies at the root of all the other problems. The Nigerian state is built on the foundation of 389 different ethnic nationalities, which makes the edifice structurally shaky, wobbly, insecure and unstable; it can be made secure and stable only if the different ethnic nationalities are coalesced into an enduring unity – no easy task.
Second, the problem of creating a nation or nation-building is basic because it is in-built or inherent in the structure of the Nigerian state, unlike all the other problems which are self-inflicted, caused by ourselves; they are inflicted by ourselves on ourselves, whatever the reason for that may be. The self-inflicted problems are corruption, abuse of office, impunity in governance, bad governance, bad leadership, election rigging, insecurity of life and property caused principally by insurgency, terrorism, kidnapping, armed robbery, criminality generally, etc.
There is, I venture to say, no better, more promising way of bringing about such coalescing than through a National Conference of the Ethnic Nationalities as a platform to trigger the process of National Transformation/Salvation. That is the main roadmap to unity, security and stability that I recommend.
FEDERALISM AS A CONSTITUTIONAL DEVICE
When the 13 former colonies in North America, meeting in Philadelphia in 1787, adopted a federal system of government, they must have intended, as a primary purpose to be served, among other purposes, the creation of a union of their diverse peoples; they must have intended, by the adoption of a federal arrangement, to form their diverse peoples into one people or one nation. Hence they called the resultant entity the American Union, or the United(not the unified) States of America. The operative word in the name, United States of America, is “united”, the reference to “states” being simply intended to indicate that, while the arrangement is “a compact among the separate states”, its purpose was, more essentially, to form their diverse peoples into a union, into one people or one nation.
Federalism may be said to be a structural necessity for nation-building in a territorially large and culturally diverse community. It is predicated upon the existence of a territorially large community comprising various geographically segregated groups divided by wide, fundamental differences of race, religion, language, culture or economics.
Its purpose is to enable each group, free from interference or control by the others, to govern itself in matters of internal concern, leaving matters of common interest to be managed centrally, and those which are of both local and national concern to be administered concurrently. By this, the differing interests and circumstances of the component groups are accommodated while at the same time securing the peace, stability and unity of the country and its survival against the forces of division and conflict inherent in the heterogeneous nature of the society.
With the decentralisation of powers to the regional governments and the consequent reduction in the powers exercisable centrally, the national government cannot become an instrument of total domination, so that the question of who controls it can be expected to excite less conflict and bitterness than if all powers are concentrated at the centre.
The federal Constitution of Nigeria exemplifies an approach based on the application of the principle of unity-in-diversitybut carried to the misguided extent of an over-concentration of powers and financial resources at the centre but without entirely sacrificing ethnic diversity. The federal Constitution of Ethiopia represents the extreme case of the entrenchment of the ethnic nationalities as the basis and pivot of the federal arrangement i.e. diversity-in-unityapproach.
The Constitution of South Africa attempts to create a nation by means of affirmative provisions designed to maintain a balance between national unity and the preservation of racial/ethnic diversity. The approach may, not inappropriately, be termed unity-cum-diversity. In any re-structuring of Nigeria’s federal system, the approaches in the two latter Constitutions (Ethiopia and South Africa) may provide a guide to draw from.
CORRECTING THE FLAWS
The re-structuring of the federal system in the 1999 Constitution of Nigeria involves, in the main, and without giving details, (i) enabling the constituent units of the Federation to have their own separate constitutions, as under the 1960 and 1963 Constitutions; (ii) re-structuring the constituent units of the Federation into such number of geo-political Zones or Regions as may be agreed; (iii) re-structuring the division of power, by radically changing the present over-concentration of powers and financial resources at the centre, including a review of the distribution of power in respect of emergency situations, power over the police force (the demand for the establishment of state police should be considered) and power with respect to the conduct of elections; (iv) giving teeth to the chapter on Fundamental Objectives and Directive Principles of State Policy; (v) revising the financial relations between the Executive and the Legislative Assembly; (vi) restricting and limiting the cost of governance by, for example, making membership of the Legislative Assemblies part-time, instead of full-time, (vii) limiting the term of office of the President to a single, non-renewable term of five or six years; (viii) rotation of the office of President among the ethnic nationalities, grouped as may be agreed; (ix) revising the Preamble to make it a source of direction and inspiration as to what we aspire to become now and in the future.
The entire Constitution may need to be completely re-structured taking into account the approaches of diversity-in-unity, as embodied in the Constitution of Ethiopia, and unity-cum-dive, as embodied in the Constitution of South Africa – modified of course as the circumstances of Nigeria demand.
The on-going constitution review exercise by the National Assembly is nothing but shadow-boxing. Given that a constitution is, by its generally accepted definition, an instrument of government whose source of authority, as a supreme law, is the people, the 1999 Constitution made for us by the military by military Decree is not really a “constitution”, and we are merely pursuing shadows by the so-called constitution review exercise which is purely an exercise in self-deceit impelled by the self-interest of the Assembly members. The fundamental issue as to how and on what terms and conditions our diverse peoples can continue to live together in peace, stability and unity as one country remains, and will continue to stare us in the face, and to threaten our corporate existence.
In the aftermath of the bloody conflicts of 1991 – 93, the bloodiest in the country’s more than 3,000 years of recorded history, the people of Ethiopia faced the fundamental issue squarely, and the solution they worked out at meetings of the ethnic nationalities, based on the tragic lessons of the bloody conflicts, was embodied in the 1995 Constitution, which is still, 17 years after (1995 – 2012), the basis of the continued corporate existence of the diverse “Nations, Nationalities and Peoples” comprised in Ethiopia.
We in Nigeria must likewise squarely face that fundamental issue, and not expect that the grave threat it poses to our corporate existence can be made to go away by the gimmick of the National Assembly’s constitution review exercise. (In its 2013 Report, the Washington – based Global Advocacy and Campaigning Organisation ranked Ethiopia among the top performing countries in Africa; Nigeria, with all its resources, is not among the performing countries named.)
LEGAL AUTHORITY FOR NATIONAL CONFERENCE AND FOR THE MAKING OF A PEOPLE’S CONSTITUTION
The power of the National Assembly to make a law for the convening and holding of a National Conference is not in dispute, and can hardly be disputed. It derives from its power to “alter” the provisions of the Constitution conferred on it by sections 8 and 9 of the Constitution. Certainly, the power to make a law to alter the provisions of the Constitution necessarily imports the power to make a law authorising the convening and holding of a Conference to deliberate on proposals or issues relating to the making of a law with respect to such alteration.
However, the power of the National Assembly to make a brand new Constitution or to make law authorising the making of a new Constitution to replace the 1999 Constitution is disputed. The disputation is in order if the Assembly’s power in that regard is viewed solely from the standpoint of its power under sections 8 and 9. For, quite indisputably, a power to “alter” a thing does not, and cannot reasonably, import power to replace it with something else entirely new.
But the National Assembly’s power in this regard is not limited to its power under sections 8 and 9 of the Constitution. The 1999 Constitution is enacted by Decree 24 of 1999, titled Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999, section 1(1) of which provides that “there shall be for Nigeria a Constitution which shall be as set out in the Schedule to this Decree”.
The only other provision of the Decree, section 1(2), simply says that “the Constitution set out in the Schedule to this Decree shall come into force on 29th May, 1999”. All that needs to be done is to repeal Decree 24, with its section 1(1), and the 1999 Constitution will stand abolished, and be simultaneously replaced with a brand new Constitution.
To reiterate for purpose of emphasis, the repeal of section 1(1) of the Decree, which establishes the 1999 Constitution by way of a Schedule to the Decree, abolishes that Constitution, which will then be simultaneously replaced with a new one. The replacement has to be done simultaneously, as otherwise the National Assembly itself will no longer be in existence to enact a new Constitution or to authorise its making.
That was what was done in 1963 in the making of the 1963 Republican Constitution to replace the 1960 Independence Constitution which was established by way of a Schedule to an Order-in-Council made by the British Government (section 2), corresponding to the making of the 1999 Constitution by way of a Schedule to Decree 24; in other words, Decree 24 corresponds to the British Government’s Order-in-Council. The Nigerian Parliament in 1963 enacted a law repealing the provision of the Order-in-Council, section 2, that established the Independence Constitution by way of a Schedule to itself; the repeal abolished that Constitution, which was then simultaneously replaced with the 1963 Republican Constitution.
The use of the 1963 method for our present purpose raises the question whether the National Assembly has the power to do what the Nigerian Parliament did in 1963, i.e. to repeal section 1(1) of Decree 24 and to enact simultaneously a brand new Constitution to replace the 1999 one scheduled to the Decree. The Nigerian Parliament was able to do what it did in 1963 by relying on a power given to it by section 18 of the 1960 British Order-in-Council to “alter any of the foregoing provisions of this Order”, including of course the provision in section 2 which established the 1960 Independence Constitution by way of a Schedule to the Order; the Nigeria Independence Act 1960 made by the British Parliament also conferred the same power on the Nigerian Parliament in its section 2.
POWER TO REPEAL
The National Assembly certainly does possess the power to repeal Decree 24 of 1999, with its section 1(1), and by doing so, abolish the 1999 Constitution and simultaneously replace it with a brand new Constitution. Its power to do so derives from sections 4(1) and 315(1)(a) & (4) of the 1999 Constitution. Section 4(1) provides that “the legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly”; what is so vested in the National Assembly by section 4(1), it is important to note, is the legislative power, not of the Federal Government in a federal system, but of the Federal Republic of Nigeria, a term wider than the Federal Government.
The provision in section 4(1) is followed by that in section 4(2) & 4(4) that “the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List” and the Concurrent Legislative List set our in “the Second Schedule to this Constitution” – the term “Federation or any part thereof”, as used in the two subsections, refers, not to a political entity, as does the term “the Federal Republic of Nigeria”, but simply to territory inhabited by people. People never bother to consider why the provision in section 4(1) is put there, and what purpose it is designed to serve that is not served by section 4(2) & (4).
It seems not to be generally realised that section 4(1), (2) and 4) of the Constitution invests the National Assembly with a dual capacity, a dual capacity that is somewhat confounded by those subsections themselves. The National Assembly is, in one capacity, the legislative arm or branch of the Federal Government in a federal system, (section 4(2) & (4)), in which capacity it corresponds to the House of Assembly of a State; in another capacity, it is the legislative authority for the Federal Republic of Nigeria as one “indivisible” sovereign state regard less of the “division” into States; its capacity in this latter respect derives from the vesting in it of the “legislative powers of the Federal Republic of Nigeria”, a political entity, under section 4(1).
It is the entire legislative sovereignty of Nigeria that is vested in it, although the exercise of the power is regulated by section 4(2), (3) & (4). It is important to note in this connection that the power of the National Assembly to make law for the peace, order and good government of Nigeria, the Federal Republic of Nigeria, by virtue of section 4(1) is not limited to matters specified in the Exclusive and Concurrent Legislative Lists; it includes under section 4(4)(b) “any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution”; it is in this respect and other respects mentioned in other provisions that the power vested in it by section 4(1) may come into play.
Section 4(1) has to be read in conjunction with section 2(1), which provides that “Nigeria is one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria”. (the italic is for emphasis) It would be inconceivable and a palpable contradiction of the status of a “sovereign state” that anything whatsoever should be outside or beyond the legislative sovereignty of the Federal Republic of Nigeria as a sovereign state. That would constitute, not just a contradiction, but a denial, of the country’s status as a sovereign state.
That is the reason why section 4(1) is put there, and it explains the purpose it is designed to serve. The National Assembly has therefore power to repeal the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999 and thereby abolish the 1999 Constitution scheduled to it under its section 1(1), and simultaneously replace it or have it replaced with a brand new Constitution, as the Nigerian Parliament did in 1963 in regard to the 1960 Independence Constitution established as a Schedule to an Order-in-Council made by the British Government.
The Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999 is “an existing law” under section 315(4) of the 1999 Constitution, which defines “existing law” as “any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this” Constitution comes into force. The 1999 Constitution came into force on May 29, 1999 and the Decree on May 5, 1999.
By section 315(1), “an existing law……..shall be deemed to be (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws”. The Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999, being a law on a matter with respect to which the National Assembly has power under section 4(1) & (4)(b) to make law, is deemed to be an Act of the National Assembly, which can therefore make a law repealing it. It would be inconceivable and a manifest absurdity that there should be an “existing
law,” as defined in section 315(4), which is beyond the power of the legislative authorities of the sovereign state of Nigeria to repeal.