An Associate Professor of History, lawyer and immediate past Head of Department of History, Obafemi Awolowo University, Ile Ife, Tunji Ogunyemi, speaks to DARE ADEKANMBI on the latest efforts at amending the 1999 Constitution, stating the areas the National Assembly should focus on, the clamour to return the country to the 1963 Constitution, among others.
There has been this back and forth over whether the current 1999 Constitution should be discarded instead of amending it, with some people calling for the adoption of the 1963 Constitution instead. How do you see the matter?
In a democratic system such as we claim to have, the power to make a new constitution does not rest in any National Assembly, but a Constituent Assembly and the Constituent Assembly will be composed by people who are themselves direct representatives of constituent parts of the federation. As things are now, that is going to be very implausible with the combative presidency that we have as well as the National Assembly acquiescing to such kind of presidency. So, I will think that the proper thing to do now is to alter the 1999 Constitution, going by Section 9 of the Constitution, and then provide for consequential adjustment such that Nigeria becomes a federal state in practice and in theory.
What is the semantic of the discourse between amendment and alteration of the constitution? Is it that the state Assemblies will have no role when the constitution is altered as opposed to amending it?
No, the state assemblies will have a role. Section 9 of the constitution provides for the process of altering the constitution. As we have it today, the constitution does not speak of any amendment. The language ‘amendment’ is not available in the constitution. What we can do is to alter it. Of course, we do know that to mend one’s shoes is not the same thing as to alter the shoes. So, it is not a semantic problem that we are using the word alteration. That is what the constitution itself says should be done. If the National Assembly must alter it, then it must pass through the processes. What are the processes? Any member of the National Assembly, acting on the instrument of representation, can initiate the process by a motion. After the National Assembly has done its part, a resolution of not less than two thirds of state assemblies, which comes to 24 states, will give it concurrence. If we are truthful with ourselves and they have the political will, the process of altering the constitution should not last more than six months.
On the areas that need to be altered, we gave a proposal to the National Institute for Legislative Studies and the Ike Ekweremadu Committee. We don’t need to do more than just 10 alterations for now. The first place we need to alter is Part 1 of the Second Schedule of the constitution wherein we have 98 powers of government in the country which the Federal Government has confiscated since the military days. The 1999 Constitution was not approved by any Constituent Assembly and a copy of it was not even available when President Olusegun Obasanjo was inaugurated on May 29, 1999. Quote me anywhere. A copy of the constitution was not available for anybody to see at that time. It was subsequently that they submitted a mutilated copy.
So, what we need to do as a quick intervention, are these: Go to paragraph 49 of that section concerning professional occupation. Why should the Federal Government have exclusive right over this? Don’t forget the whole of Part 1 of that schedule is about the exclusive power of the president. Our argument is that we need to cut those powers down significantly and transfer the powers to the Concurrent List so that the states can have power to legislate over them. Not only that, paragraph 21 dealing with public holiday makes it illegal for any state to declare a public holiday, although so many of the governors have been declaring work-free days by subterfuge to go round the provision to do illegality. It is very strange that in a federation, only the Federal Government can declare a public holiday. You would realise that during the governorship of Rauf Aregbesola, he did not obey that as he was busy declaring all manner of holiday for the traditional African worshippers.
The third part is paragraph 52 of the Second Schedule of Part 1 which deals with railway. The Development Agenda for Western Region (DAWN) Commission has decided that if the Federal Government railway would not work, the West must do something about it. They contacted a Canadian company which was ready to give counterpart funding and the technical wherewithal. The Federal Government came and stopped them through an order of court that the issue of railway is the exclusive preserve of the Federal Government.
The next one is stamp duty. Why should I want to sign an agreement in Osun Sate where I work and live and the stamp duty that I should pay to Osun State government will be paid to the Federal Government? The rule is that you pay your tax where you are living, not where you are working. Another one is the issue dealing with the establishment and regulation of authority to identify, collect and do things that have to do with archives and historical monuments. Do you know it is only the Federal Government that can make laws concerning historical monuments? For a monument in Ilesha, I will have to wait for the Federal Government to declare it of importance.
The seventh one is trade and commerce in respect of establishing marketing board. Do you know it is only the Federal Government that has the authority now? They seized that authority from the regions and transferred it to the Federal Government. Is that not a roguish transfer?
But by far the most significant is the one that has to do with police as contained in Section 214 of the constitution where it is declared that only one police shall exist in the country and that police shall be under the control of the Federal Government by Section 215. This Section should be altered because policing in a federal state cannot belong to a federal power only. In fact, policing is ultimately local because crimes are committed in a locality within an area. So, why can’t we have a local constabulary or local government police in Osun State to enforce tenement rate, Land Use charges, environmental pollution and things that have to do with hygiene and so on?
Finally, the Personal Income Tax Act and Company Income Tax Act should be transferred to the states. The principle of taxation is that you pay tax where you are living. Therefore, why should my personal income tax be regulated by a federal law? Osun State, for instance, cannot adjust its tax base to increase its revenue in order to meet its minimum expenditure. It will have to wait for the Federal Government to adjust it. Why? Why can’t Ondo and other South-West states do same? As for the Company Income Tax, if a company is domiciled in a state and the state government, even after granting the company concession over acquisition of land, the company is expected to pay its tax to the Federal Government. All the companies in Sango Otta and Igbesa, all the distilleries, the breweries, the pharmaceutical companies there which are in their hundreds pay their taxes to the Federal Government, whereas it is Ogun State government that ought to get such taxes.
Also, there must be a consequential adjustment of Section 3 subsection 6 of the constitution which speaks about issues that have to do with Nigeria having 768 local governments. I hope you know that the total number of local government in Nigeria is 768 and not 774.
It is generally taken that we have 774 local government areas…
That is not correct. Just pick a copy of the 1999 Constitution and read Section 3 subsection 6. You will see that it clearly says that the total number of local governments in the country shall be 768. Do you know that the remainder to make it 774 will be six? Those six are the six area councils in Abuja. The Supreme Court, in 2003, in the case of Attorney General of the Federation versus Attorney General of Abia State and 36 ors ruled that the Area Councils in Abuja are not local governments because Abuja is not a state. It ruled that the constitution provided that Abuja shall be treated as if it were a state, which actually means it is not a state. If I say, why are you talking to me as if I am your house girl, does that mean I am your house girl? The Supreme Court ruled that since they are not local governments, they should not be sharing from the Federation Account as do local governments. It ruled that their share should be taken from that of the Federal Government because the Federal Government has exclusive authority over Abuja. But let us not belabour that. That Section needs to be expunged from the constitution.
Why do you think so?
Nigeria is a federation of states and not local governments. Read Section 2 of the 1999 Constitution. It is there. The local government should not therefore be sharing in the federation account because it was the opportunity that the military created to permit a part of the country to be dealing with the revenue of the country at variance with its contribution to the federal pool. For instance, since people have been saying there are 774 local governments in Nigeria, have you noticed that more than 460 of them are in the North? So, when they are sharing revenue, those local governments that are contributing absolutely nothing will share more than the areas that are contributing. Have you noticed that? Local government should be the exclusive preserve and authority of the states and the constitution says this much in Section 9 which says that the administration, structure, finance and discipline of local governments shall be the exclusive preserve of the House of Assembly of a state. The House of Assembly of each state can therefore determine whether a parliamentary system or presidential system be adopted in a particular state. The assembly can even confiscate the allocation of the local governments and put it in the state purse called the State Joint Account from which the state will just pay the salaries of council workers and confiscate the remainder. In Osun State, the government always confiscates 15 per cent of the income of local governments and uses it to fund the state university that the councils did not send it to go and create. So, when the local governments are deleted from the constitution and they stop being a source of siphoning money, or as former President Olusegun Obasanjo once called them, constitutional stealing centres, the waste in the system will be reduced so that nobody will be using the local government system as a system to steal money. All the money goes to each state and the governor in each state can decide the number of local governments he will create. If he likes, let him go and create 100 local governments, they will be of no constitutional importance. Local governments may be necessary, yes Section 7 which says a system of a democratically elected people is what is guaranteed in the constitution. It does not guarantee the local governments. Kano State, which is approximately the population size of Lagos, has 44 local governments whereas Lagos has just 20. Is that not fundamental cheating? Ondo State is bigger in population than Osun State, but Osun has 30 local governments while Ondo, which is an oil-producing state and has more money than Osun, has 18. Can you see the ludicrousness and the lopsidedness in the system? So, when you begin to look at the local government system, they are not reflective of federalism at all. They are just reflective of a part of the country cheating the other fundamentally, even in the allocation of revenue. We need to change that; otherwise, the evidence and the imprimatur of military rule will not be off our neck.
Finally, we do not need the House of Representatives because it is a waste. I know some people said it is the Senate that we do not need, but I disagree. In a federal system, it is the Senate we really need. Representation in the Senate makes states to be coordinates. The House of Representatives is superfluous. Why do we need two chambers to pass any law? The 109 Senators are enough to pass any law and all the states in the country are represented equally in the Senate. Let the peoples of Nigeria be represented in their state assemblies, not at the national level where it is treated in such a way that whatever the representatives from the North say holds sway. Once they say this thing will not go, it will never because they are grossly in the majority. Nigeria is the only country where people who live in desertified area, an arid region where there is no water, are more in number than those who live in forested area. Nigeria is the only country in the world that is living at variance with that geographical and geological rule. Go to North Africa and you will see how desertification has affected their population. It is the reverse in Nigeria.
So, when we remove the House of Representatives and have a unicameral legislature, you will see that the states will be fairly balanced, at least in terms of 17 versus 19. It is also clear that in our legal system, we have two Nigerias, a Nigeria of Criminal Code which is applicable in the South and a Nigeria of Penal Code which is applicable in the North. We have two Nigerias operating two separate legal systems in a supposedly unified federation. Why do we like to deceive ourselves? Why don’t we say the states of the federation of Nigeria are just six? Not that we will dissolve the extant states. But they will be collapsed into their respective regions so that we will have six governor generals and the governors of each state will still exist. This is a technical return to the 1963 Constitution, but because it will amount to a wholesale removal of the 1999 Constitution which is still doing incalculable damage to the minorities, then we can retain the geopolitical zones as regions. That way, all the states in the South-East will not need to be competing with the South-West. It won’t be necessary.
There are those who say we should adopt the 1963 Constitution instead of tinkering with the current document…
I would have loved that, but we have the ki i gbo, ki i gba [the recalcitrant] in the National Assembly who will always block it because to adopt it means to truthfully go to Nigeria’s original testament of federalism. Don’t forget that the 1963 Constitution was just a little adjustment of the 1960 Constitution which was actually reached three years earlier at the Lancaster Conference by Nigeria’s founding fathers in 1957. That is Nigeria’s original document on federalism. All the regions had their own separate constitutions and separate Supreme Court. To do this, we need two-thirds majority and there are 17 states in the South. Even with the states in the North-Central that are now trying to be friendly with the South, we will still have 23 states and we will need one more for the adoption to sail through. So, you see that the North holds the ace because they are benefiting more from the ludicrous system of Nigeria. So, they won’t allow such benefit to go, no matter how logical our argument. That is why some people say the situation is beyond redemption, although I don’t agree with that. I believe the country is still salvageable. Nigeria is still doable.
The 1999 Constitution has been altered many times, yet things are still not working. Is it then not better to discard it?
Well, it has been altered not too many times, but only four times. It was altered in 2010 three times, 2011 one time and recently altered in 2018, one time which permitted the state houses of assembly to have financial autonomy and the heads to judiciary to get all money meant for that arm of government. We have had about 110 alterations in total. So, we have not altered it too many times, even the American Constitution which provides for amendment, has been amended for countless times.
Things are not still working and the country is now more divided than it has even been, agitations for secession have become strident…
The division you see is principally as a result of the attitude of the current president, Muhammadu Buhari, who has appointed himself as the Senior Advocate of Nomadic Killers. In the Code of Conduct, there is something conflict of interests. We can see very clearly that President Buhari has conflict of interests between his ethnic group and the Nigerian nation. There is no way you can placate them, they will not be satisfied. But because it is not enough for you to serve justice, it must be seen that it has been served. It is because Nigerians don’t see that justice has been really served, that is why you have these agitations. For example, do you know the main thing in the first alteration to the current constitution was to permit the National Assembly to determine their own budget for salaries and allowances? Can you imagine? You think that any Nigerian will think such thing will serve their interest? They will be the ones to pass the budget, determine how much they get from it. Who does not know the technology of using teeth to divide a piece of meat and then declaring that the meat can’t be found? Nigerians have seen that justice has not really been served and you can never remove that perception until the current curse passes over the Nigerian state, the curse that we already have and which will pass over us in two years’ time.
What curse are you talking about? Are you referring to Buhari Presidency as a curse on Nigeria?
It looks like that. I understand the pains of Nigerians concerning the unworkability of a country that ought to work. But when you sentence your political system to an absentee president or the one that will react only when the ethnic group to which belongs is at the receiving end, this is what we are going to have until the term finishes. That is why I say patriots should not be discouraged. They should know that this curse shall pass over us.
A US think-tank, Council of Foreign Relations, in a report few weeks back described Nigeria as a failed state, although government has reacted strongly against that. Do you share such view as expressed by CFR?
I will rather modify it to say Nigeria is an almost failing state. If a state is failing and somebody comes to you to say it is not a failed state yet, it is like saying a person that is terminally ill and is barely breathing has not died. Even if he has not died, the fact that he can’t do anything and is depending on oxygen means we should begin to sing nunc dimittis for such a person? If the government says it has not failed even though it is failing fundamentally, is that person not being clever by half? Some people want a Nigeria in which only they are dominant as they have successfully done now in such a way that they have blackmailed themselves out of relevance in a future Nigeria in which they will have no role again. So, they now want the country to atrophy. I tell patriots, don’t permit the evil doers because originally they are from Fouta Djallon Island. They are not even part of us. Don’t allow our nation to fall into their hands by permitting them and their machinations and subterfuge to succeed. We must not let evil succeed by refusing to do nothing. That is why it pains me when our people in the North-Central, who have historically been used by the core North to harass the destiny of the country, are still finding some accommodation with them. It surprises me. The truth of the matter is that this country belongs to all of us. So, when somebody wants to push us to the status of second-class citizens, please let us refuse him and not allow his machinations to succeed. Machinations succeed when you throw your hands up in their air and say nothing can be done and the time is too short. Is there anything that you cannot do when you are desperate? Have you noticed that miracles come only to the desperate person? If you still have alternative choices, you will never get any miracle. When there are no alternatives, you go and stay put on God. Is that not the status in which Nigeria is now? Can’t we occupy the National Assembly? Are the lawmakers there not from the states of the federation? Are they ghosts? Can we not use both below and above the line measures to make them do the needful, even if they have sworn before the gods and mammons that they will do everything against us? Let us not allow evil doers who will soon return to Fouta Djallon Island to break our country.
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