Constitutional reform imperatives for Nigeria’s Senate

Over recent decades, there have been robust arguments and counter-arguments for scrapping the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the “Constitution”). The central thesis of the proponents advocating scrappage, rests on three principles.

One, the Constitution is a fraudulent pseudo-democratic imposition on the Nigerian people by the country’s previous military dictatorship. Two, the Constitution disproportionately concentrates power in the federal government and therefore undermines Nigeria’s heroic claims to true federalism.

Three, the Constitution’s preamble which asserts; “We the people of the Federal Republic of Nigeria… do hereby make and give to ourselves the following Constitution…” is wholly untrue; because the framework is not an accurate reflection of aspirations of the over 200 million, multi-cultural, multi-ethnic and multi-religious people that make up the country.

For ease of reference, this essay characterises, in strictly non-pejorative terms, that philosophy as the “abolition” school of thought. Equally, foundational counter-arguments are advanced by the “revisionist” school of thought, again, in a non-pejorative order. The revisionists’ counterarguments are predicated on three important principles.

First, it is a utopian ideal to expect the Nigerian Constitution or any one for that matter to have emerged from a perfect democratic government and democratic governance model. In short, it is fanciful nonsense. Second, Nigeria has operated an imperfect democratic government and governance model in the Fourth Republic for a quarter of a century (1999 -present). Ergo, within the context of nation-building and statecraft, Nigeria’s democratic experiment is, and must be, work-in-progress, irrespective of the Constitution’s historical provenance.

Third, it is politically dysmorphic, to “throw the baby out with the bath water.” Thus, whatever defects subsist within Nigeria’s constitutional order, the extant de facto and de jure democratic governance and democratic structures are more than sufficient to deal with them. That thesis, it is argued, is reinforced by the fact that Nigeria has 36 democratically-based, however imperfectly formed, elected state houses of assembly representatives; a fully elected federal legislature comprising 109 members of the Senate; 360 members of the Federal House of Representatives; an elected President, 36 elected state governors; and 774 elected members of local government authorities across the entire country.

The compelling inference therein is for active engagement in the democratic process by all citizens, ditto the emanating moral imperative to legitimately hold elected leaders accountable for good governance. The jurisprudential warrant for this proposition is thus established within the conception of democracy in Abraham Lincoln’s terms which remains, the government for the people, by the people and for the people.

The ideological divergence between the abolitionist and revisionist schools-of-thought highlighted above, relative to Nigeria’s constitutional order, therefore sets the context for the realpolitik in addressing competing priorities within the realms of constitutional reform and the country’s legal, socio-economic, socio-political, sustainability and geostrategic realities.

The Senate, being the upper legislative chamber, has a pivotal role to play in constitutional reform in the quest for an enduringly sustainable legal and social order – of course working collaboratively with citizens and other stakeholders – to establish a better Nigeria.

So, what role, if any, should geopolitical considerations play in sensitive and strategic federal appointments? Should competence and meritocracy outflank federal character and quota systems? In the battle for effective and transformative policies with the potential to positively impact the lives of ordinary Nigerians, how many ministers are required at the federal level?

Nigeria’s currently overburdened with debt overhangs ($91.3 billion Q2, 2024) and repayments (circa 64 per cent of external payments in 2024). Accordingly, what demonstrably practical measures are being proactively implemented to streamline the machinery of government? Why doesn’t the country have a dedicated Ministry of Social Security to formulate policies, and help address pervasively interconnected issues of multiple deprivation, illiteracy, homelessness, poverty and homelessness and unemployment? How could credible private sector and non-governmental organisations be catalysed and incentivised to creatively execute some of these strategies?

In practical terms, section 147 (1) (2) of the Constitution provides that there shall be as many ministers as may be established by the President subject to Senate confirmation. Those sections are reinforced by the seminal caveat established within section 143 (3), which expressly states that “the President shall give appoint at least one Minister from each State who shall be an indigene of such State.”

The proviso is not only silent on competence and merit but explicitly uses the prerequisites of State indigeneity and geography, as a basis for ministerial appointment. Not only that, Nigeria is currently comprises 36 states. Thus, the President, by virtue of these constitutional provisions is statutorily encumbered from appointing the most competent persons to Ministerial positions.

Worse, he/she cannot independently determine a lower ministerial appointment limit. So, let’s say the President decides to appoint two competent persons from each of Nigeria’s six geopolitical zones, totalling twelve persons, he simply cannot do that. The inference of geographical balancing and quotas, are crystal clear. However, to the extent this provision is an unwieldy political albatross, which impedes the President’s capacity to appoint ministers upon the prospectus of competence and merit, it is clearly unsustainable and one area where the Senate could, and should, initiate and execute, legislative reform.

In the country’s current Fourth Republic (1999 to present), three leaders, notably President Olusegun Obasanjo (1999-2007), Mohammadu Buhari (2015-2023), and Bola Ahmed Tinubu (2023 and currently), have concurrently held the positions of Petroleum Minister.

The logic in retaining those position to themselves is understandable. Because crude oil is a pivotal strategic asset and the country’s largest foreign exchange earner, plus, it reinforces the symbolism of financial stewardship by the country’s number one citizen. However, that logic is supplanted on more compelling policy grounds.

First, the President is the nation’s chief executive and therefore has a moral obligation to master his/her brief across all aspects of policy including economics, education, defence, health and social care, housing, infrastructure, transport etc.

The illustration, which readily springs to mind is the UK Prime Minister, who is expected to answer questions on any aspect of government policy during Wednesday Parliamentary Sessions in the House of Commons. Yes, the UK operates a Parliamentary system of government, whilst Nigeria operates a US-style Presidential model.

Yet, what better example of patently visible democratic accountability is there than to watch the Prime Minister answering questions on his/her government’s policies on agriculture, defence, education, fiscal policy, foreign relations, lean government etc; knowing that the accuracy, completeness and veracity of his responses will not only remain in Hansard, but could permanently make or mar his/her political career?

Second, running the Petroleum Ministry should be a specific responsibility of someone other than the President so that the specific objectives, deliverables, qualitative and quantitative performance metrics are clear, timebound and easily ascertainable by citizens and stakeholders whether in terms of seamlessly purchasing petroleum products, affordability, accessing supply chains therein, environmental sustainability, governance et al.

Third, the hypothesis of democratic governance, democratic government, governmental-continuum, and the inherent interdependencies, presupposes that no one policy portfolio is more important than the other in statecraft. It is the case that all policy themes demand intellectual capacity, effective leadership, oversight and delivery, accountability and financial stewardship, and sound execution. The emanating recommendation establishes a creative imperative for Nigeria’s Senate in this realm.

Furthermore, it is recommended that the Senate examines legislative reform opportunities pertaining to the devolution of police powers and the Land Use Act. On police powers, section 214 (1) of the Constitution provides: “there shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to provisions of this section no other police force shall be established for the Federation or any part thereof…”

The provision effectively imbues the Nigeria Police Force with monopolistic policing powers nationwide. Notably, section 2(d) of the Nigerian Police Force Act 2020, which repealed the Police Act C.19 Laws of the Federation of Nigeria 2004, empowers “the Police Force to effectively prevent crimes without threatening the liberty and privacy of persons in Nigeria”; and section 2 (e) of the same enactment defines the functions of the Police Force as “the safety and security of all persons, communities and property in Nigeria.”

In reality, the extant Police command-and-control structure, has been found wanting in several respects, not least in its inability to convincingly and sustainably tackle criminality, the prevalence of ethno-religious terrorism and the high spate of kidnapping nationwide.

According to the 2023 Global Terrorism Index, Nigeria is one of the countries, like Burkina Faso, Israel, Mali, Pakistan, Somalia with the highest rates of terrorism globally. Through 2011/2023, terrorism caused over 22,000 fatalities and displaced millions of people in the country. In short, efforts aimed devolving policing powers should be catalysed by the Senate.

The Land Use Act 1978, governs the administration and disposition of land nationwide. However, it is bedevilled by extensive bureaucracy and vests disproportionate powers in State governors. This phenomenon is an impediment to development, domestic and foreign investment, because land remains a vital factor of economic production.

The recommendation is for greater simplification, efficient and effective deployment of technology in land transactions. At the end of the day, the real choice for the Senate is, in respect of the above and related themes, between impactful legislative dynamism and inertia.
Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development (2023).