Nigeria: Constitution amendment needs greater collaboration, consultation to succeed

Like many human documents, a constitution is mostly a work in progress: amendments and new acts are enacted to bring it up to date to their current realities of the people they serve. Without such, most constitution would be anachronistic tomes.

And like many countries in the world, Nigeria has had to tweak its imperfect constitution which, at its core, is a child of flawed birth. The manner of how it came to be — as a means for negotiating a transition from military to civilian rule, with little input from Nigerians–has meant it is a document with significant flaws and an even more significant lack of legitimacy.

Nigeria’s flawed constitution takes little cognisance of its diversity, fosters gender imbalance and rarely provides direction on how to tackle the relatively newer phenomena of life such as the dangers of climate change.

Some of these inadequacies pose existential problems to the country.

For instance, the spectre of gender imbalance and the violence it occasions was accentuated in the country during the height of the COVID-19 pandemic and consequent lockdown.

Since the outbreak of COVID-19, emerging data and reports from those on the front lines, have shown that all types of violence against women and girls, particularly domestic violence, has intensified.

The Lagos State Domestic and Sexual Violence Response Team (DSVRT) recently released data saying that in 2020, they received 3,193 cases of domestic and sexual violence, nearly 50% higher than normal.

In June 2020, Nigeria declared a state of emergency on rape and sexual violence in all 36 Nigerian states. This was because of advocacy on the issue after a trio of high-profile cases of violence against women. Advocates around Nigeria called for a state of emergency in gender-based violence.

It began when 16-year-old Tina Ezekwe was killed when police opened fire on a bus stop in Lagos, Nigeria’s commercial capital. The incident happened during a COVID-19 night-time curfew. Days later, the protest momentum increased after 22-year-old university student Vera Uwaila Omozuma, known as Uwa, was raped and killed in her church in Edo State on 27 May.

News reports said she had been studying in the church hall. On Tuesday, 3 June 2020, an 18-year-old undergraduate Barakat Bello, was found dead in her home in Ibadan, Oyo State. She had been raped and killed. The police have made arrests in one of the cases, and investigations continue in all three cases.

There are a number of laws in the country which sustain gender-based violence.

Section 26(2) of Nigeria’s 1999 constitution confers citizenship rights to women married to Nigerian citizens, but the same rights are not conferred on men married to Nigerian citizens. Going by this provision, men married to Nigerian women can only become Nigerian citizens by naturalization which takes at least 15 years.

In Section 14(3), federal character provisions made for the composition of the Government and its agencies fails to consider gender and instead focuses on ethnic representation.

Laws bordering on assault against men and women carry different classifications and punishment in Nigeria’s Criminal Code. An assault on a man is categorized as a felony and attracts a punishment of up to 3 years imprisonment under Section 353. On the other hand, an assault on a woman is categorized as a misdemeanour attracting a punishment of up to 2 years imprisonment under section 360 of the same Criminal Code.

Section 357 of the Criminal Code exempts perpetrators of rape within marriage from punishment. Furthermore, marital or spousal rape is not a crime in Nigeria (arguably, this is no longer the case by virtue of the Violence against Persons (Prohibition) Act 2015). Section 282 of the Northern Nigeria Penal Code exempts perpetrators of rape within marriage from punishment.

Section 18 of the Marriage Act discriminates against women by taking away their rights to consent for an intended marriage as a parent except in cases where the father is dead or of unsound mind.

Section 34 of the Labour Act stipulates that: Any citizen who is recruited for service in Nigeria may be accompanied to his place of employment and attended during his employment there by such members of his family (not exceeding two wives and such of his children as are under the age of sixteen years) as he wishes to take with him. A similar provision is not made for women recruited for service in Nigeria.

Nigeria’s Penal Code in Section 55(d) encourages a married man to beat or chastise his spouse stating that “nothing is an offence” as long as it does not amount to the “infliction” of “grievous hurt” “by a husband for the purpose of correcting his wife.”

Silence on climate change
For a country that depends on oil and agriculture for a large part of its GDP, climate change is an existential problem for the country. The country depends largely on fossil fuel as a source of energy, revenue generation and foreign exchange earnings. Also, it relies greatly on rain for its agricultural processes-especially planting which invariably affects food production in the face of a changing climate.

The exploitation of the country’s natural resources has not followed best practices and has not just devastated the environment, but also further contributed to the destruction of the climate. A recent revelation from the United Nations Environment Programme (UNEP) assessment of Ogoniland has shown that pollution in the oil producing areas of the Niger Delta remain at alarming levels. Research has also shown that Nigeria accounts for 13% of global gas flaring.
Even though there are various laws and agencies tasked with environmental protection, polluters are not held accountable due to their overlapping and contradictory legal frameworks. Polluters can then cherry-pick regulators and frustrate enforcement efforts. Clear frameworks allow for apportioning of blame and recommendations are necessary.

Remediation efforts such as the Ogoni Clean-Up have stalled, and since Nigerians cannot get justice at home, they now seek that redress from foreign courts. In recent landmark rulings, a Dutch court ruled that Shell pay compensation to farmers in Nigeria who have lost their livelihoods to pollution, and the UK Supreme Court ruled that Royal Dutch Shell can be sued in the UK for its actions in Nigeria.

The effects of climate change in the country range from extreme weather events, air and water pollution and loss of biodiversity. Climate change is blamed for the rapid shrinking of Lake Chad, which has worsened conflicts between farmers and herders in the country by forcing herders southward in search of pasture and water for their cattle.

To fight climate change, Nigeria is a signatory to the 2004 Kyoto Protocol and under the Paris Agreement, has committed to an unconditional reduction of Greenhouse emissions by 20% by 2030, and a conditional contribution of 45% reduction.

High legislative turnover as a problem
One of the major issues that impedes progress on constitutional amendments is the high level of legislative turnover. Over 60% of federal legislators do not retain their seats from one assembly to another. This also affects key legislation like passage of the Petroleum Industry Bill, as well as allowing poor legislation to continue to surface, like the various attempts to regulate social media. A reduction in the level of turnover will improve the quality of lawmaking in both chambers.

By way of recommendation, there should be greater collaboration in the CSO space concerning efforts at amending the constitution, to avoid duplication of efforts concerning constitutional amendments. Experts say the fragmented nature of the space is down to the need to take credit for activities and justify donor funding. Nigeria is also seen as a low-trust society, and there is a growing generational divide that pits older activists against the younger generation.

Donors also have a responsibility to avoid duplication of efforts by the organisations they fund. Their development priorities should reflect the needs of the communities they serve, rather than coming with a set agenda from their home countries.