Advancing constitutional reform in Nigeria

Within the precinct of humanity’s well-being and societal order, jurisprudential orthodoxy emphasises the importance of the laws of God – often expressed via a messenger, inspired revelation or commandments, and prevalent in the Abrahamic faiths of Christianity, Islam and Judaism; natural law – which innately emanates from nature, reason, and is often binary i.e., it sharply defines right and wrong, good and bad; and, man-made law – these include acts of parliament, constitutions, decrees, edicts and statutory instruments.

In true democracies, the constitution, whether written in a single document, like that of Nigeria or the United States of America; or unwritten, albeit codified in several statutes, which obtains in the United Kingdom, is the grundnorm and the most pertinent. The reasoning is logical: it expresses, and ought reasonably to express, the will of the people, the balance and boundaries of the rights and responsibilities of the social contract between an elected government and its people, their well-being, governance model and much more.

Indeed, Section (1) (i) of the Constitution of the Federal Republic of Nigeria (the “Constitution”) 1999 clearly establishes that canon: “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

Given that context, this article analyses aspects of the 1999 Constitution of the Federal Republic of Nigeria (the “Constitution”) against the criteria of fitness for purpose in the 21st century; the relative merits of devolution of power, socio-economic challenges besetting Nigeria, and proffers pragmatic recommendations for reform.

Sections 14(2)a of the Constitution stipulates that sovereignty belongs to the people of Nigeria, from whom government derives its authority whilst subsection 14(2)b of the same provision establishes that “the security and welfare of the people shall be the primary purpose of government.”

These constitutional provisions implicate several posers: if the overriding duty of government is the safety and well-being of the people, why is there so much insecurity and terrorism across swathes of the country? With a population exceeding 210 million people and an abundance of human and natural resources, what informs Nigeria’s position as the African country with the greatest share (12.6%) of global poverty? As the world’s 8th largest exporter of crude oil, with earnings of N14 trillion in 2021, why is Nigeria’s debt to GDP ratio at 17.50%? After more than two decades of operation, is there a case for a root and branch review of section 4, Schedule 2, Part 1 (Federal Exclusive Legislative List) and Part 2 (Federal and State Concurrent Legislative List) of the Constitution?

Whilst there is neither a silver bullet nor a utopian resolution to any of these posers, nevertheless, it is instructive to examine practical and effective constitutional arrangements in other climes to examine what, if any, useful lessons can be learned and applied in the Nigeria.

In the United Kingdom for example, the policing model is based on highly collaborative quasi-independent federating units across the country, operating on the philosophy of policing by consent. This implies that policing powers emanate from constitutional provisions, are patently legitimate and, broadly, command the people’s consent.

Thus, the Metropolitan Police Service exercises crime detection, crime prevention and law enforcement jurisdiction across 32 boroughs within Greater London excepting the Square Mile. Likewise, Avon and Somerset Constabulary, Surrey Police, North Wales Police, Police Scotland and the Police Service of Northern Ireland exercise similar jurisdictions in their territories and, crucially, work inter-operably, with other security agencies – incentivised with commensurate resources.
Equally, South Africa has strategically adopted a Community Policing model, which seeks to embed more collaborative compacts with the people.

The deduction in both the UK and South African models, in policy terms, is that it aims to bring policing closer to the people, has the potential to improve intelligence gathering and, by extension, crime detection and law enforcement. Against this premise, it is recommended that given the heightened insecurity in the country (over 300,000 children killed; 2.3 million people displaced; and, between 2011/12, over 34000 deaths caused by Boko Haram; according to the UN, Global Terrorism Index and Statista respectively); the Nigerian Parliament (National Assembly) should urgently prioritise new legislation on devolution of police powers to federating units at state level, which optimises sharper interoperability with the armed forces and the necessary operational resources for operational effectiveness.

In its March 2022 report “A Better Future for All Nigerians”, the World Bank affirmed that 4 in 10 Nigerians live below the national poverty line of less than $2 per day. Sub-optimal growth, low human capital, and exposure to global economic shocks were key factors impeding the country’s poverty reduction strategies. But what does all this have to do with the Constitution? Everything! The nation’s constitutional framework underpins the fundamental rights of citizens, the regulatory model upon which persons operate, and it articulates the freedoms and flexibilities upon which the parameters of subsidiarity are established at federal, state and local government levels.

The 2nd Schedule, Section 4, Part 1 (Exclusive Legislative List) Section 62 (b) of the Constitution illustrates the point. It provides for the “establishment of a purchasing authority with power to acquire for export or sale in world markets such agricultural produce as may be designated by the National Assembly.” However, given the fact that 40% of Nigerians live below the poverty line, the necessity to catalyse productivity and boost employment, it is recommended that this provision be amended to afford states/regional economic partnerships, the right to establish commodity boards or purchasing authorities, access local agro-supply chains and market their produce on international markets and boost the nation’s foreign exchange earnings.

Paradoxically, the 1963 Constitution of the Federal Republic of Nigeria, established at section 76 (3) that the powers conferred upon Parliament by this section “shall not include powers to: (a) establish a purchasing authority for a region; (b) confer on any person or authority, power to acquire in a Region any commodity for export from Nigeria from any person in that region other than a purchasing authority established for that region by the legislature of that region; (c) regulate prices to be paid by a purchasing authority established by the legislature of a region for commodities for export”. In simple terms, these provisions afforded regions the powers to establish purchasing authorities for commodities, set their prices and export for foreign exchange on global markets.

The emanating policy question then is this: if the provisions of section 76 (a), (b) and (c) of the 1963 Constitution afforded regions the latitude to boost productivity, catalyse employment and raise necessary foreign exchange, what is the compelling logic of retaining section 62 (b) of the 1999 Constitution? Very little indeed. It is recommended that the latter provision be amended by the National Assembly.

Similarly, the urgent need for economic diversification and internally generated revenue by the states, begs the question as to why mines and minerals extraction, and natural gas subsist at section 39 of the Exclusive Federal Legislative List of the Constitution. There is no overriding necessity for this provision and the proposition herein is for this to be a Concurrent item within the federal and state legislative competence.

Summing up, for the aforementioned reasons, the case for a review of the Constitution is overdue. That contention is eloquently reinforced by the sparkling words of the 19th Century British statesman, Benjamin Disraeli: change is inevitable in a progressive country. Change is constant.
Ojumu is Principal Partner at Balliol Myers LP, a firm of legal practitioners in Lagos, Nigeria.