Constitution made in hurry, made in error

IN promulgating Decree 24 on May 5, 1999 as the 1999 Constitution, the then Head of State and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria, General Abdusalam Alhaji Abubakar, GCFR, made an addendum to the decree. The addendum was not part of the decree; it was just an explanation on the constitution. General Abdusalam declared in the addendum “WHEREAS the Federal Military Government of the Federal Republic of Nigeria in compliance with the Transition to Civil Rule (Political Programme) Decree 1998 has, through the Independent National Electoral Commission, conducted elections to the office of President and Vice-President, Governors and Deputy-Governors, Chairmen and Vice-Chairmen, the National Assembly, the Houses of Assembly and the local government councils;  AND WHEREAS the Federal Military Government In furtherance of its commitment to hand over to a democratically elected civilian administration on 29th May 1999. inaugurated on 11th November 1998, the Constitutional Debate Co-ordinating Committee charged with responsibility to, among other things, pilot the debate on the new Constitution for Nigeria, co-ordinate and collate views and recommendations canvassed by individuals and groups for a new Constitution for Nigeria;

AND WHEREAS the Constitutional Debate Co-ordinating Committee benefitted from the receipt of large volumes of memoranda from Nigerians at home and abroad and oral presentations at the public hearings at the debate centres throughout the country and the conclusions arrived thereat and also at various seminars, workshops and conferences organised and was convinced that the general consensus of opinion of Nigerians is the desire to retain the provisions of the 1979 Constitution of the Federal Republic of Nigeria with some amendments; AND WHEREAS the Constitutional Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council;

AND WHEREAS the Provisional Ruling Council has approved the report subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting  the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over an enduring Constitution to the people of Nigeria;  AND WHEREAS, it is necessary in accordance with the programme on transition to civil rule for the Constitution of the Federal Republic of Nigeria 1979 after necessary amendments and approval by the Provisional Ruling Council to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect” from 29th May 1999: NOW THEREFORE, THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:- (1) There shall be for Nigeria a Constitution which shall be as set out in the Schedule to this Decree. (2) The Constitution set out in the Schedule to this Decree shall come into force on 29th May 1999. (3) Whenever it may hereafter be necessary for the Constitution to be printed, it shall be lawful for the Federal Government Printer to omit all parts of this Decree apart from the

Schedule and the Constitution as so printed shall have the force of law notwithstanding the omission, 2. This Decree may be cited as the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999”. You are free to form an opinion on the addendum. One thing is however clear, by the time we held the gubernatorial elections in the country on February 20, 1999 and the Presidential election on February 29, 1999, the new Constitution was not ready. By 1999, the 1979 Constitution suspended by Brigadier General Sani Abacha’s announcement on December 31, 1983, was still suspended. Likewise, the 1988 Constitution prepared by the Constituent Assembly headed by Justice Anthony Aniagolu(1922-2011) was not available. Also, the 1995 Constitution prepared by the Constituent Assembly headed by Justice Adolphus Karibi-Whyte (1932-2020) was also not ready. At the time the elections were held in February 1999, the 1999 Constitution being prepared by Justice Niki Tobi (July 14, 1940 – June 19, 2016) was also not ready. In his wisdom, General Abdusalam Abubakar did not constitute a Constituent Assembly to give the country a new Constitution; he only relied on the Constitutional Debate Co-ordinating Committee headed by Justice Niki Tobi.

Justice Niki Tobi was born in Esanma, Bomadi LGA, in what is now Delta State. Prior to his career at the bench, he was the dean of Faculty of Law and deputy vice-chancellor (academic services), University of Maiduguri. He was appointed to the Supreme Court in 2002.  He was known for his legal erudition and wide knowledge of legal principles. Justice Tobi made attempts before and after the elections to have an audience with General Abubakar through the then Secretary to the Government of the Federation, Alhaji Gidado Idris, GCON. He succeeded in seeing him twice. Only General Abdusalam Abubakar GCFR (82) can explain better why he jettisoned the idea of a Constituent Assembly to give the country a new constitution. My understanding is that General Abubakar wanted to leave power at a short notice. He must have been jolted by the death of Chief Moshood Kashimawo Olawale Abiola, GCFR, (24 August 1937 – 7 July 1998), acclaimed winner of the 1993 Presidential Election and the sudden death of the man he succeeded, General Sani Abacha, GCFR (20 September 1943- 8 June 1998) on June 8, 1998.

 In short, he wanted to retire to Minna in good health. Were he to be alive today, Justice Niki Tobi will be surprised that the 1999 constitution which his team prepared as draft is still in existence today although with some amendments. In my discussion with him at the International Conference Centre, Abuja, where I was posted from the office of the Secretary to the Government of the Federation as a member of the adhoc staff of the Constitutional Debate Co-ordinating Committee, he said several times that the draft will be subjected to many amendments by the Provisional Ruling Council.

 Realising the numerous lapses in the Constitution, one of the first things President Olusegun Obasanjo GCFR did was to review the 1999 constitution by setting up a committee headed by Ambassador Yusuf Mamman. The Committee was inaugurated on 19th October, 1999 by the Attorney-General of the Federation and Minister of Justice, Mr. Kanu Agabi with the following terms of Reference: To co-ordinate and collate the views and recommendations from individuals and groups for a review of the Constitution, having regard to the need to maintain the corporate existence and unity of the nation; to identify and specify all anomalies, irregularities and defects inherent in the existing Constitution and make appropriate recommendations to correct such anomalies, irregularities; to make proposals for the review of the Constitution to ensure that it reflects the true experiences, wishes and aspirations of the people and suggest ways and means of making the Constitution an expression of the will of the people; and to address the lingering problems of power sharing between the Federal and State Governments and between States and Local Governments.

Other members of the committee were Chief Clement Ebri(Deputy Chairman), Alhaji Iro Abubakar Dan-Musa, Dr. Shettima Mustapha, Chief Yohanna Madaki, Chief Alani Bankole, Chief Ayo Adebanjo, Barrister(Mrs) Iyabode Pam, Air C’dre Bernard Banfa (rtd), Mrs Ayoka Lawani, Hajiya Basirat A. Nahibi, Alhaji Isiaku Mohammed, Chief A.K. Horsfall, Chief Ayo Opadokun, Dr. J.C. Odunna, Barrister Mika Anache, Dr. Amos Adepoju, Dr, Silva Opusunju, Chief Barnabas Gemade, Alhaji Gambo Saleh, Dr. Arthur Nwankwo, Dr. Maxwell M. Gidado and Mrs M.V.I. Mbu. Shortly after inauguration, Chief Barnabas Gemade was replaced by Barrister Edward Ashiekaa.

Later, an adjustment to the Committee’s composition was made when Ambassador Yusuf Mamman, Chief Ayo Adebanjo, Chief A.K. Horsfall, Mr. Ayo Opadokun, Mrs. Ayoka Lawani, Dr. Arthur Nwankwo and Chief Solomon Asemota, SAN were replaced by Dr. Stella O. Dorgu, Prince Valentine Ahams, Barrister Mohammed Babangida Umar, Alhaji Abdulhamid Hassan, Barrister Adeniyi Akintola, Barrister Sunday Kuku Iyakwo and Dr. Olu Agunloye. 

Accordingly, the Committee undertook a 23-day nationwide visitation programme to hold public hearings on the Constitution Review Exercise in all State Capitals. In order to effectively but less strenuously cover the entire country within three weeks, the Committee broke into three (3) Tour Teams, with each team assigned to cover two geo-political zones, one in the North and one in the South. Team “A” was led by Ambassador Yusuf Mamman with other members as follows: Air Cdre (rtd) Bernand Banfa, Mr. Ayo Opadokun, Dr. Shettima Mustapha, Barrister (Mrs) Iyabode Pam, Dr. J.C. Odunna Dr. Silva Opusunju, Colonel (rtd) Yohanna Madaki, Dr. Maxwell Gidado (Secretary), Barrister Johnson Ebokpo (Rapporteur) and Barrister Sajo Dahiru Bobo (Legal Assistant). Team “B” was led by Chief Clement Ebri.

The other members being as follows: Alhaji Iro Dan Musa, Chief Albert Horsfall, Dr. Arthur Nwankwo, Dr. Amos Adepoju, Barrister Mika Anache, Hajiya Basirat A. Nahibi, Alhaji Gambo Mohammed Saleh, Dr. Maxwell Nduaguibe (Rapporteur) and Mr. Abdulmumuni Umar (Legal Assistant). Team “C” the third of the three Teams was led by Chief Edwin Ume-Ezeoke and with him were the following members: Barrister Edward Ashiekaa, Chief Alani Bankole, Alhaji Umaru Ahmed, Alhaji Isiaku Mohammed, Barrister (Mrs) Ayoka Lawani, Barrister (Mrs.) M.V.I. Mbu, Chief Ayo Adebanjo, Barrister Samuel Dusu (Rapporteur) and Felix Olelewe (Legal Assistant).

The Tour commenced on Sunday 16th January, 2000 and ended on Wednesday 9th February, 2000 when the visitation programme for the Federal Capital Territory, Abuja, was completed.

On completion of its nationwide visitation programme, a delegation of the Committee travelled to the United States of America to attend a Seminar on the “Threat to Democracy in Nigeria” at Colin Powell Centre, New York, under the sponsorship of Ford Foundation. The lessons drawn at the seminar were revealing as they pointed out fresh approaches which would not only render the Committee’s work more thorough, but would also make the outcome of the Constitution Review Exercise more nationally and internationally acceptable. A new dimension therefore emerged with the offer of US$2 million technical/financial assistance from Ford Foundation to enable the Committee to widen the scope and levels of consultations on its assignment, thereby making it more participatory. Such an expansion in the Constitution Review process inevitably went far beyond the initial conception and financial projections of government when Mr. President constituted the Committee. The Ford Foundation support facility was therefore very timely.

As part of this financial assistance, the Ford Foundation also attached Consultant to the Committee at the Foundation’s expense but with the Committee providing him with only accommodation and local transportation. The Consultant, Professor Bereket Selassie, a Professor of Law and Politics at North Carolina University, USA, and one-time Chairman of the Eritrean Constitution Commission arrived soon after in Nigeria and assisted the Committee during some critical aspects of the Constitution Review Exercise.

I am happy that Chief Emeka Anyaoku’s committee of Patriots has resolved to give the country a better Constitution. They should be encouraged in all ways. We cannot deceive ourselves. This 1999 Constitution will lead us nowhere. Something must be done urgently. No matter how long we have been implementing the provisions of the Constitution.

It was made in a hurry and it was made in error.

•Teniola, a former Director at the Presidency, lives in Lagos

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