General Yakubu Gowon (second military head of state) after noting how politics had been "thoroughly debased and commercialized" stated the object of the Conference. The violent reaction in some parts of the North "following the tendencies to extreme unification..points to one and only one thing. That a country as big as Nigeria and comprising such diversity of tribes and cultures, can not be administered successfully under a Unitarian form of government" unless through
151. ibid, “The Regions are Abolished) ironsi's Broadcast to tha Nation banning poliyical paries and Introducing Decree No. 34.of 24/5/1966*.
152. ibid Major Hassan Katsina's addres to the Emirs and Chiefs on l/6/1966i 16/6/1966i Ironsi's address to the National Conference of Traditional Rulers,
Ibadan,2B/7/1966, pp.191-191.
153. ibid,‘The Moment of Truth* Cowon Opens the Costitutional Conference in Lagos.12/8/1966, pp.216-219.
154. ibid. ‘Recosmendations made by the Representatives of the Regional Military Governors' Meeting on 9/9/1966*. pp.208-209.
suppression.155 It was also-to consider the distribution of powers between regions- and the centre, territorial divisions, mode of constituting legislatures or a "form of association with an entirely new name yet to be found in any political dictionary in the world but peculiar to Nigeria".
Its terms of reference seem to be a re-run of the object of review in 1952 without the reference to the new formula. This underlines the continuity of the problems constitution making had confronted since 1900. In addition to the long term consideration of a constitution. it was as well mandated to provide an interim arrangement for administering the country. After several sittings where representations were made on the basis of regions through delegates, the Conference submitted progress reports containing some interim agreements.156 The latter were basically a re-ordering of the subjects on the legislative lists of the 1963 constitution.
However,the work of the Conference was aborted following the withdrawal of the members from the East upon the instruction of the governor. He gave as the reasons for his action, the renewed violence in Kano against the Ibos, demand for compensation for the Ibos and the non implementation of some agreements by the federal
155. ibid, Gowon, "Th» Moment of..*
authorities.157 Subsequent attempts to resolve the impasse in Aburi-Ghana resulted in further mutual recriminations and controversy regarding the nature of agreements reached, mostly in camera and the different versions of which is beyond the scope of this work.158 Constitutional lawyers and politicians involved in searching for a formula to reconcile these forces would not have the opportunity again until after a civil war, 1967-1970 and another coup that overthrew General Gowon in 1975.
157. Ibid,■Resolution of Eastern Consultative Assembly,7 October,1966" pp.256-57.
CHAPTER THREE
3.INTRODUCTION: THE THIRD PHASE O F CONSTITUTIONAL ENGINEERING, 1975-1989.
In truth, Nigeria went through three phases of constitutional development. The first two covered in the preceding chapter, involved the period 1900-1946 when the governor was mainly the constitution maker. On the other hand, the constitutions made or attempted between 1947- 1960 reflected a progressive implementation of colonial policy through the constitution, with limited aid from the indigenous elites. It resulted in a bundle of compromises at two levels. First, among colonial officials themselves, between them and the indigenous elites. Second, among the regional chieftains of the latter to whom formal structures of power were handed over in a calm atmosphere in 1960. In this way, colonial structures were passed on to the country unquestioningly including the international commitments made to benefit the metropolitan power.The constitution sought to rationalise the contradictions among the local elites all in vain as it crashed under its weight.
Thus, 1960-1974 was a period of crises and waste during which the colonial heritage was sought to be internalized with limited success in so far as the basic social, economic and political structures established by colonialism remain undisturbed.This historical context relating to the impact of previous constitutions is necessary to a proper understanding and assessment of
constitution making and the- identification of any shifts or continuities in the effoTt to secure constitutionalism in Nigeria.
However, there is a major difference between the environment of the colonial period and immediate past on the one hand and the later period on the other which should be reflected at the constitutional level. First, at the practical level, there is no direct imperial hegemony except the military, (who share some of its features) to limit the range of options. Second, the practical experiences of the crises of the sixties and the civil war were there to learn from and improve upon. Third, the enormous revenue from oil ensured availability of the funds required to finance development projects to arrest illiteracy, unemployment, poverty, disease, etc given the appropriate constitutional framework, orientation and leadership. Finally, and more importantly theoretical and practical pitfalls could be minimized because the strengths, contributions and weaknesses of three perspectives which dominated the constitutional and political economy of Africa since the sixties into the eighties have been laid bare1 .
Briefly, these theories and prescriptions were: First, the law and development school emphasized institutions, law and order and expected Africa to continue to follow the course of development in Western Europe and America
Mamdani,T.,et al,(1988) Social Movements, Social Transformation and the struggle for Democracy in Africa. CODBSRIA, working Paper No.1-provides a short and precise sumnary of these schools. Also Ghai, Y.P.(1987),"Law, Development and African Scholarship* 50 The Modern Law Review,pp. 750-76.
in this regard. Second, the dependency theory arose as a critique of the former, but heavily preoccupied itself with the external aspect of the crisis of Africa. Third, is the mode of production thesis which shifted the argument from the unilinear external perspective of dependency to a study of the internal contradictions of the "centre" and "periphery".In constitutional terms, the effect of the last two schools of thought had been the adoption of statism, generally inspired by the so- called African authenticity and the Soviet-China non-capitalist development.2 Finally, the activities of the students of legal pluralism and other ethnographic researches contributed in raising critical issues concerning some aspects of the organisation of African societies.3 They focused on Africa's internal institutions that partly survived colonialism with important implications for constitution making given the persistent call for African solutions to its problems.
Given this fairly clear theoretical environment, a constitution maker may assess Nigeria's problems as merely "shortcomings of political procedure, techniques, style and the personality of the actors"4 and concentrate on creating or strengthening existing institutions to
2. Shivj1,I.(1989) Keynote Address to the African Regional Institute of the American Council of Learned Societies' Comparative Constitutionalism Project, held in Collaboration with the South African Political Economy Series/Afrlean Association of Political Scinces, South Africa, May 22-25, Harare, Zimbabwe. Also as Seminar Paper In School of Law, University of Warwick, July, 1990.
3 . A major text on this is Benda-Beckman.P.von, woodman, G.R.et al (1988) Between kinship and the State, Social security and Law in Developing Countrles.(Foris, Holland t U.S.A.)
foster an intra elite consensus and corporatism, as in the past. Meanwhile, the status quo would remain unassailed, if not strengthened.
On the other hand, the historic opportunity may be seized upon to break new ground and reverse the continued marginalization of the majority of the population. Rather than concentrating mainly on limited forms of liberal democracy, a framework would be laid to create the conditions necessary for popular democracy, for instance the competent use of franchise, debate and discussion of crucial issues, accountability, etc.5 But the ultimate central objective of a new constitutional frame must include the following:6 1(a) to restructure the economy so as to reduce to the minimum the extant huge gap between the general public and those in control of public institutions and business.(b) Secure equitable distribution of resources in the various sections of the country and sectors of the economy.
2).To jettison the widely propagated belief that political activity is mainly concerned with contest for material resources and public status among the areas, nationalities, families and individuals. The holding of public office be dissociated from the current practice of private accumulation through huge official and unofficial remuneration.
5 . Therban,C.(1977) "The Rule of Capital and the Rise of Democracy* in 103 The New Left Review ; Bangura, Y.(19S8) "The Crisis of Underdevelopment and the Transition to Civil Rule: Conceptualising the Question of Democracy In Nigeria" Africa Development. 13 Review of African Political Economy 1: 33-50.
3) Foster a popular system of participation through which the common man can understand, guide and discipline its representatives.
4) Re adjust exploitative external relations "to internal demands for popular transformation and development, as against the bourgeois strategy of adjustment of internal growth to the constraints of the world wide expansion of c apital” .7
These objectives are attainable in the long term only through a practical and responsible citizenry. Such a citizen is built on the pillar of political education beginning with simple things as orientations about government, common political and economic knowledge, notion of and conscious sharing of institutions.8 Others are, knowledge about the significance of voting, campaigns, mass meetings, casting of ballot and political and economic practices defined as corrupt, etc. The constitutional context for realizing these can be secured through providing a special role for working class and students' movements, intelligentsia genuinely sympathetic to the cause of mainstream of the population, co operatives and fostering consciousness and activity in the citizenry. The aim is not so much social engineering as to "underline actual forms of organisation ...that
1. Amir, S .(1987) -Democracy and National Strategy in the Periphery- 9 Third Word Quarterly,4 1129-1156.
8. Hayward, M.Fred,(1973) "Political Participation and Ita Role in Development : Some Observations Drawn From the African Context* 7 The Journal of Developing Areas, 591-612.
have actually emerged [oc_ existed) in the historical development of popular movements in Africa".9
The orientation of a constitution largely depends on those controlling its process. Constitutions, noted McWhinney,10 tend to reflect the personality or general intellectual (and economic) background of its drafters.lt has already been noted in chapter one how Charles Beard and other writers thought of the American Constitution of 1787 as a document that rationalized the broad economic interests of its makers. The rest of the thesis covering this phase will consider the philosophy and orientation of the constitutional process within the theoretical grounding of the first chapter.
In attempting the discussion along this line, certain caveats and constraints are noted. First, not all the participants in the process have economic history or are accessible. The existing system of patron-client relationship requires in most cases a period of initiaton for confidence and loyalty building. The situation is further complicated by the tendency to cluster shares and directorships in single influential patrons for easy access to public and private patronage. Again, information on those currently in government is not accessible. It is for this reason that some writers have used the income and occupation of some of the
9 . Mamdani, at al. op. clt. p.
16
.10. Mcwhinney, E. (1966) Fadaral Conattutlon (or a Multinational world. (Sijthoff- Laydan) p.7.
participants to - determine, the class basis of the process.11
It is also to be borne in mind that the lack of solidarity among the dominant groups has been the reason for the crises and instability in Nigeria, hence, the fact that they take divergent views on some issues should not come as a surprise. Finally, in class analysis, the role of thinkers and intellectuals is problematic.12 This general position is exemplified by the existence of minority reports as we will see, written on the basis of fundamental disagreement with the position taken by the majority of the members on crucial issues. The authors of the minority report are people sharing similar objective privileged position with most of the majority but fundamentally differing in their subjective views. Thus it has been noted that "one can not simply infer a stratum's political orientation on the basis of its apparently privileged position vis-a-vis others". Within the context of this introduction, we now consider the constitutional process that heralded the Second Republic in 1979.
Sae Onimode. B. and Osagie, B.(1977),'Economic Aspect of cha Draft Constitution" New Nigerian Newspapers, 8/1/197? t 10/1/1977. Sklar had used this approach as early as 1963 in a seminal work on tha power structure in Nigaria-Sklar,R.L.(1963) Nigerian Political Parties, power in an emergent African country.(Princeton)
Hindess.B.(1987) Politics and Class Analysis (Oxford, London).
13 Sandbrook, R. and Arn, J.(1977) The Labouring Poor and Urban Class Formation! The Case of Greater Accra ( Monograph Series, No.12, Canter for Developng Area studies, Montreal, Mcgill Univ.,) p.7.
3.A. T H E CONSTITUTION DRAFTING COMMITTEE, 1975-1976. The making of a new constitution was part of the transition programme to civilian rule announced by General Murtalla Mohammed after overthrowing General Yakubu Gowon in a coup in July, 1975. Gowon had reneged on an earlier promise to hand over to civilians in 1976.14 In the transition scheme, a Committee would produce a draft constitution by September 1976; local Government would be organized and elections held on a non party basis. The latter would in turn, partly constitute the electorate for forming the Constituent Assembly to adopt the work of the Draft Committee. Finally, an existing ban on party activities would be lifted to usher in series of elections to form the State and Federal Governments. The assassination of Murtalla did not prevent the fulfilment of this programme by General Olusegun Obasanjo who succeeded him.
It may be noted that while the Committee had begun its work, the Military Government created seven more states and established a new federal capita-Abuja. The role of the Committee and the subsequent Constituent Assembly was therefore minimized in these matters.
3.A.1 Appointment and Composition of the Committee. The 51 member body was handpicked first on the basis of a geographical criterion (2 per state) while the rest were learned men in disciplines considered to have direct
14. Pantar-Brick,K.(1978) -The Constitution Drafting Committaa" in Pantar-Brick, <ed) Soldiers and Oil, tha political transformation of Nigoria. (Prank Cass, London) p. 291.
relevance to constitution making- history, law economics and other social sciences, -especially political science. Eminent Nigerians with some experience in constitution making wer e brought in to complete the spectrum"*15 Specifically, they were exclusively from the professions of law, business and academics or university administration and politics. Of the 50 (Chief Awolowo having declined to serve) who participated, 24% were legal practitioners; 44% were academics and university administrators. In all, 24% of the entire membership had served as ministers or commissioners in either the civil government of the first republic and or the subsequent military regimes now engaged in private vocations.16 The available specific economic interests of some of the members is however quite revealing. Of the lot, 36% were directors or chairmen in companies that were either wholly indigenous or linked to multinationals and constituting the largest group. Specifically, those linked w ith international finance account for 66.7% of the whole. The Chairman of the Committee and a prominent Sokoto prince held directorships and or chairmanships in a record of at least ten companies each most of which were subsidiaries of multinationals. The Head of State at the time of the process. General Obasanjo subsequently
ls. Address by Hia Excallancy, the lata General Murtalla R. Muhammad, In the Report of the Constitution Drafting Committee (hereinafter called the Committee) .Vol.I, p.xllll, 197«.
16. Report of the CDC, Vol.ll ( containing the Sub Committees' work) (Federal Ministry of Information, Lagos, 1976) p.S for the list of members. For analysis, see Osoba, O.,(1979) "The Nigerian Constitution and the working Class* in 1 Positive Review, 3:5-42. Data extracted from: Nigeria Company Handbook, Information on major companies in Nigeria (Research and Data Services Ltd.Lagos, 1986)i Who's who in Nigeria 19S3 (Daily Times, Lagos)! Who's Who in Africa (1982).
retired to a multi-million naira agro-based and merchandise business which existed when he was occupying the office. Similarly, his second in command,Generaly
Shehu M.Yar'adua, retired to business in finance, construction and shipping.
It is therefore clear that the CDC and its appointors were a composite fusion of interlocking sectoral interests with a fairly comprehensive coverage of the overall ideological and value commitments of the dominant ruling class1 7 . The high component of those who served in past administrations and past constitutional processes would ensure continuity of those values, as we will see. In stark contrast was the absence in the Committee of effective, critical representation from the lower segment of the population such as workers, students and others in subsistence farming or petty trades. It was not omitted by inadvertence. General Murtalla had earlier on defended the omission o n grounds of convenience. "It is not possible within such a small group to include all shades of opinion and all interests. Nor is this necessary. It is enough to ensure that all the broad areas of interest and expertise are brought into the Committee...”18 The concrete effect of this one-sided representation will become obvious in the procedure adopted by the Committee and the determination of concrete issues.
17. Osoba, op. clt.p.9.
3.A.2 Terms of Reference and Procedure.
The Committee first met on 18th October, 1975 when General Murtalla made an inaugural speech to spell out important guide-lines after which the Committee would produce a first initial draft constitution for public comment and discussion . A running theme in the speech was the creation or strengthening of institutions and procedures in the constitution to change the behaviour of political leaders. "This administration believes strongly that the provisions o f the constitution can be used for removing or minimizing some of our basic problems" and to transform politics f r o m "its previous scenario of bitter personal wrangles i nto a healthy game of political argument and discussion"*19
In concrete terms, t h e constitution should aim to provide for the following: i) To eliminate cut throat competition where the winner takes all.ii) Jettison institutionalized opposition to the government in power and develop consensus politics and government predicated on a community of all interests and not parochialism, iii) Defuse tension through a decentralized power structure and functions, iv) C r eate means of securing a free and fair elections, vi). Depoliticise the census, which has been a source of difficulty in the past because of its linkage with revenue allocation significantly based on