Opinions

Doctrine of necessity, new constitution and Nigeria’s survival

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3 years ago

THE threats to Nigeria’s survival are many. Our dispositions to these threats and perceived antidotes to the threats are diverse. I am writing this as an optimist, who strongly believes in corporate existence of Nigeria but without self-delusion that the survival of Nigeria as one nation is irrevocable. Nigeria,in the 1960s and 1970s, gave my generation a comfortable childhood without being a child of an aristocrat or an educated elite. Nigeria had a beautiful and peaceful scenery all over in spite of the regrettable civil war. After the civil war the declaration of “no victor, no vanquished” by General Yakubu Gowon in January 1970 radiated hope for a nation that had been traumatized for almost half a decade from January 1966 to January 1970. Unfortunately, Nigeria is at war with herself again. This time around, the civil war is unconventional. The enemies are known and yet unknown. Known, because fair-minded and faithful patriots can easily identify the enemies of the Nigerian state; and solutions to tackling them are simple if those in power assert themselves to work in public interest rather than self-interest often dictated by primordial biases of ethnic superiority, religious bigotry, primitive wealth accumulation, fragrant disregard for the rule of law, and repudiation of merit in public choices. Unknown, because many that are saddled with the instrument and responsibility of confronting these enemies are themselves encumbered by some predetermined retrogressive notions that have become institutionalized as features of the Nigerian state.

These somewhat institutionalized features of the Nigerian state have increasingly bred discontent and a tendency toward dismemberment of Nigeria especially in the past few years.Decay and decadence are manifest in almost every facet of Nigeria, and there are ample reasons to be apprehensive about what the future portends.We have come to a juncture where it appears the axiom,“government exists for security and welfare of citizens”, does not apply to Nigeria. The current near total breakdown of law and order as demonstrated by hyper-insecurity that has festered from North-east to the rest of the North, and now in the South, clearly portends grave and disastrous consequences if we do not act fast enough. This is compounded by declining welfare of citizens as demonstrated by increasing youth unemployment and rapid decline in livelihood conditions across the population strata. Even the rich and affluent are scared and unable to enjoy their material resources except they take a flight out of Nigeria. Many young and talented persons with good jobs are leaving Nigeria in droves to western countries where they can employ their skills and at the same time live in peace.

Public universities have been locked down for nearly half a year and the children of the powerful elite that should ensure the universities open for business are reportedly graduating with fanfare in foreign universities. After more than two decades of democratic governance, medical tourism still thrives and is on ascendancy. Most shameful is the fact that the men and women in power, who should build medical infrastructure, often jet out to foreign countries for healthcare, not minding the untoward security and economic implications of their actions for Nigeria. Nigeria trains doctors in public universities at highly subsidized rates and easily lose them to foreign lands because of decayed medical facilities and lack of incentives to retain them. Nigeria is wasting away. How far can this wasting go before it results in extinction of the Nigerian state? Though the answer is uncertain, the risk is very high that the unwanted day of reckoning might be close by.

How can the failing ship of the Nigerian state be rescued? I will provide opinion out of a strong conviction that hope is not lost. Rescuing Nigeria is a task that must be done. Our commitment to rescue and pilot Nigeria to a new and enviable heights requires deliberate decisions and courage from all that value peace and progress, and are keen on bestowing to future generations a Nigeria that works for her citizens and earns the respect of the international community. This new Nigeria for our children, and also for us if we act fast enough, will not be described as potentially great, but actually demonstrate her greatness to the world within the time frame of not more than a generation. Nigeria is currently in a state of constitutional and moral logjam that has resulted from decades of untruth and gloss over nation building. We are in dire need of new thinking and courage of statesmen that are willing to make huge personal sacrifices to avoid the impending disaster that may otherwise happen to all. The doctrine of necessity, in my opinion, provides the most feasible pathway out of the current logjam. This doctrine became popular in Nigeria in 2010 during a logjam that was far less in intensity than what Nigeria currently faces. Dr. Goodluck Jonathan was to be sidelined and robbed of his constitutional role as an acting president while his principal, President Umaru Yar’Adua was hospitalized in Saudi Arabia and unable to formally transfer the instrument of office to his deputy. The National Assembly intervened by invoking the doctrine of necessity to proclaim Goodluck Jonathan as acting president without recourse to constitutional niceties that require such a proclamation to be done by the ailing president. This resulted in speedy restoration of normalcy and order that enabled Nigeria to make progress in managing state affairs.

The doctrine of necessity goes beyond the limits of the law when legality becomes incapable of resolving situations that threaten good governance, fair-play and human welfare.

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The doctrine is often invoked to restore order and stability that are considered lawful even if the actions taken contravene established constitution, laws, norms or conventions. This is not the same as anarchy or typical constitutional breaches, but rather patriotic actions to save the state from embarrassment that may result from rigid adherence to constitutional norm in a situation that has stretched the constitution to its limits. This doctrine has been applied to resolve delicate and knotty political issues in notable countries, the most recent being the United Kingdom. The UK Foreign Secretary recently (on 13 June 2022) introduced the Northern Ireland Protocol Bill in the House of Commons. The bill was aimed at jettisoning a major aspect of Brexit withdrawal agreement between United Kingdom and the European Union. The UK openly justified this action as being provoked by the doctrine of necessity stating that the Brexit terms and conditions were unacceptably strenuous for institutions in Northern Ireland and do not allow any other alternative means of safeguarding the interests of the United Kingdom.

Nigeria is presently hooked and chained by self-inflicted perfidies. Running on with business as usual is dangerous; hence, the urgent need to invoke the doctrine of necessity to address some of the difficult issues that have become albatross to nation building. In this respect, I am addressing the challenge of Nigeria’s constitutional convolutionsand democracydebacle.

The experience of democracy in Nigeria in the fourth republic (1999 to date) has so far left serious doubts on the appropriateness of the constitution bestowed on Nigeria by military incursions into civil governance in Nigeria. The current efforts by the national assembly to amend the constitution has been variously criticized as being incapable of addressing the debacle of democracy in Nigeria. Prominent features of this debacle include entrenchment of feudalism and entitlement politics (recently christened, ‘emi l’okan’ politics), obscene monetization of politics, religious bigotry, and gross mismanagement of ethnic diversity. These are the major knotty issues that hold Nigeria down from rising and make her incapable of realizing her development potentials.

The so-called dividends of democracy since 1999 have been very limited in scope and reach. The economy is still characterized by lack of critical infrastructure to support production, and Nigeria remained highly dependent on a single commodity export. Debt that was crushed in 2005 through debt forgiveness and debt buy-back has now grown to the extent that by the first quarter 2022, debt servicing obligations became higher than federal government retained revenue.Unemploymenthas been worsening and disposable incomes are weakening. The social milieu is continuously bastardized by credible reports of brazen rape of national treasury, obscene monetization of politics, perjury and open praise for persons that should be otherwise arrested and charged for abuse of public office.The practice of democracy in Nigeria has largely been a government of the privilegedfew working to satisfy the greed of theprivileged few. The Nigerian masses, who are in dire need of development, are often overlooked when their interests are at variance with political ambition of their representatives in government. The elite consensus for development, which helped propelled a country like Singapore from underdevelopment to enviable economic prosperity within a generation (1965 to 1990), is starkly lacking in Nigeria’s practice of democracy. Simply put, Nigeria has wasted another opportunity of a generation by reducing democracy in the fourth republic to the pursuit of political power for building personal political empires that thrive on greed and plundering of national assets. The result is gross sub-optimal allocation of the scarce resources available for financing development. This is a major explanation for deepening poverty and unattractiveness of Nigeria as a destination for real sector investments.

Invoking the doctrine of necessity totemporarily suspend the 1999 constitution and allow a convocation of an elected constituent assembly that would produce a truly Nigerian people’s constitution is the sine qua non for resolving the current logjam in Nigeria. This suggestion is not entirely new, but rather re-echoes the well-publicized statements of some highly respected and accomplished Nigerians, notably eminent lawyers, Aare Afe Babalola and Chief Wole Olanipekun.As happened in 2010, legislators in the 9thNational Assembly should smartly craft necessary resolution(s) and bill(s) that would provide cover for actions required to temporarily suspend the 1999 constitution without causing a derailment of the fourth republic. The new constitution should seek to restructure Nigeria such that each agreed regional blocks can exploit and develop her human and natural resources without encumbrances by the federal government. The federal government should be mainly responsible for promotion of national unity through effective management of our ethnic diversities, organization and command of national armed forces, and management of international relations.As practiced in other countries with a truly federal political structure, policing and judicial adjudications should be structured to take place at both regional and federal levels with each region having de jure and de facto authority over its police and judiciary.

From my knowledge of development economics, getting production right is the strongest argument for restructuring the Nigerian state from its ubiquitous pseudo-federalism to a truly federal state with its federating units free to exercise freedom to manage its human and material resources.Economic development is rooted in enterprise development where production takes place. The challenge of Nigeria’s economy is more of a production challenge. Once Nigeria gets production right, innovative firms that are able to compete internationally would emerge; economic diversification would occur and advance; foreign exchange earnings would come from diverse sources and Naira would gain strength;jobs would be created; restless youths, who are prone to criminality, would be mopped up into gainful vocations; disposable incomes would increase and demand boosted; insecurity would begin to wane; and Nigeria would not only rapidly recover from the current malady, but also become a land of the anticipated pride of Africa.

Education, agriculture, industrialization,power generation and distribution, and critical service provisions such as in health services,transport and logistics should be exclusively in the purview of regional governments because they are closer to communities and are better positioned to understand how best to efficiently organize these development inputs. Nigeria was in this mode of a truly federal state in the first republic before its abrupt end in January 1966. Nigeria’s economic history attest to the fact that the first republic was a period when Nigeria genuinely promoted production. Regional governments were in healthy competition for development across sectors: agriculture, industry, education, transport, etc. Nigeria was gradually emerging as a pride of Africa with world-class universities, a television station before many European countries, a university college hospital that was internationally renowned, diversified exports across regional agricultural commodities, emergent industrialization based on creation of industrial estates promoted by regional governments, etc. These development strides were halted with the introduction of unitary system of governance by the first military government of General Johnson Aguiyi-Ironsi with the instrument of Decree 34 of 1966. The decree abrogated the federal structure for a unitary state, akin to the unitary command structure of the armed forces. Nigeria thus strayed away like the biblical prodigal son. We should humbly come back to our senses like the prodigal son did, reflect on what has worked for us in the past, and return to a truly federal constitution based on thetested 1963 constitution. The 1963 constitution not only recognized four federating regions (Northern, Eastern, Western, Mid-western) and a Federal Capital Territory, but also endorsed a regional constitution for each region. For a country with extensive ethnic and religious diversities, a unitary or pseudo-federal constitution like Nigeria’s 1999 constitution is a recipe for injustice and unending crisis. The longer the 1999 constitution is propped by its beneficiaries, the longer the misery of Nigeria.

With the sustenance of the 1999 constitution, itis now apparent to many Nigerians that we are under an internal colonization which manifests in various guises that promote mediocrity above merit, ethnic supremacy above equal citizenship, and religious bigotry above respect for diversity of religious value systems. The outcomesinclude: poor education or lack of education of the citizenry resulting in weak and jaundiced human capital base; exaltation of political ambition above development imperatives; apologetic treatment of insurgents, bandits and terrorists;entitlement politics; perceived islamization and fulanization of the country; arrogant disregard for inclusiveness in political office sharing as recently demonstrated by the endorsement of muslim-muslim presidential ticket by the ruling party; festering clamour by ethnic nationalities for self-determination; and the scare of possible disintegration of the Nigerian state.

A stitch in time saves nine. Nigerian elder statesmen and all who have benefitted from a peaceful Nigerian state while growing up should raise our voices to demand for an urgent invocation of the doctrine of necessity to replace the 1999 constitution with a peoples’ constitution founded on truth and justice, and with provision for a referendum to determine the constituent components of Nigeria. Every part of Nigeria and every ethnic nationality are well endowed and should be willing to contribute to national development once we agree on a constitution that is fair, just and truly represents our common values. Such a constitution should be devoid of provocative reference or mention of any ethnic or religious groups. Reference to or mentioning of ethnic and religious leanings should be the purview of regional constitutions, which should guide each region’s development in accordance with its perceived cultural tendencies.

Let us invoke the doctrine of necessity to destroy the false foundations of Nigeria and replace it with a new foundation based on truth, righteousness and justice. The 1999 Constitution is highly deficient for nation building and for the realization of the dream of a peaceful and progressive nation with shared prosperity. It should be replaced, not amended. You cannot amend a lie or fraudulent material to get to the truth that will give peace and freedom from oppression. Our legislators are incapable of significantly changing the constitution because it has become an instrument used by them to sustain an obscenely monetized democracy.

Men and women that fear God, irrespective of tribe, religion or creed, should speak out, loud and clear, and proclaim the demand for a new constitution for Nigeria. The future of our children is at stake. They should not be second-class citizens or fear to live in the land of their birth. We need to rise up to help ourselves get our freedom from internal colonization. Nigeria should not disintegrate, but be restructured and reworked to guarantee freedom from oppression, peace and progress for all her citizens. Let us speak and work for a true republic devoid of feudalism and a federation devoid of obstacles to growth according to the people’s productivity and cultural leanings.

We are tired of the unproductive state, held down by illogical and primitive greed by those that govern us. The break-up of Nigeria is unhelpful for many reasons.The best option, whether or not 2023 election holds, is for us to insist on restructuring into a truly federal state akin to what we had in 1963 Constitution. The new constitution should demonetize politics by making it unattractive to unaccomplished individuals looking for opportunity to make money. Public service should be a benevolent and sacrificial giving to make the world better than we met it.The worst enemies of Nigeria are those resisting the removal of the false foundation represented by the largely unitary 1999 constitution, and politicians and high-level civil servants powered by greed. We should stand up and clearly raise our voices against these enemies, not join them to perpetrate the evil that they do. Whatsoever a man sows that he shall reap. God is the Judge of all.We are a deeply religious people and should note that God has done enough for Nigeria. We need to act fast using our gifts to save Nigeria. May the elders and powerful voices in the land yield to the voice of reason.