It Is Not Too Late for Nigeria to Reject 1999 Constitution?

Since 1966, Nigeria has operated only two constitutions. The 1979 and 1999 constitutions. The 1979 constitution was Decree No 25 enacted into law on September 21, 1978 by Gen. Olusegun Obasanjo, became operative on October 1, 1979 but was suspended by Maj. Gen. Muhammadu Buhari when he overthrew President Shehu Shagari’s government on December 31, 1983 through Decree 1.

The 1979 Constitution was produced by Justice Egbert Udo Udoma (1917-1998) with input from the Constitution Drafting Committee headed by Chief Rotimi Williams (1920-2005). Justice Udoma was the Chairman of the 1978 Constituent Assembly.

The 1999 Constitution was produced by Justice Niki Tobi, who was the Chairman of the 1998 Constitution Debate Committee. The constitution, which we still operate, is Decree 24 which was promulgated into law by Gen. Abdusalami Abubakar, on May 5, 1999 and has become operative from May 29, 1999 till date.

Tobi was Deputy Vice- Chancellor and Dean, Faculty of Law, University of Maiduguri until April 22, 1985 when he met his old lecturer, Justice Adolphus Karibi-Whyte at the VIP Lounge of the Murtala Muhammed Airport, Lagos. At the time of the meeting, Karibi-Whyte who had earlier taught Tobi at the University of Lagos, was the Chief Judge of Rivers State.

The outcome of the meeting changed the destiny of both men. For, during the meeting, Karibi-Whyte invited Tobi to leave the academic world and join the judiciary, an offer he could not refuse.

Tobi’s wife begged her husband not to accept the offer because she loved the serene life at that time in Maiduguri.

And so, on July 22, 1985 along with his two friends, F.F. Rubai and St. K. Sagbe, Tobi was sworn in as Judge in the River State Judiciary.

Born on July 14, 1940 at Esanmi in Bomadi local Government Area of Delta State, Tobi rose to the Court of Appeal in 1990.

 While serving in the Court of Appeal in Enugu, he was appointed to head the Constitution Debating Review Committee in 1998. I knew him at that time, for he would stroll in quietly to see my then boss Alhaji Gidado Idris, who was then the Secretary of the Federation on the 11th Floor at the Federal Secretariat, Abuja to discuss the progress of his committee’s work and other logistics.

With a file on his left hand accompanied by a police orderly, he would go in to see Idris and depart quietly.

He became a Justice of the Supreme Court in 2002 to replace his old teacher, Karibi-Whyte. On July 14, 2010, Tobi retired from the Supreme Court and up till today along with the former Chief Justice of the Federation, Justice Katsina Alu, he has not been accorded the traditional valedictory session by his colleagues at the Supreme Court. I am told he has retired to Yenagoa with his wife where he is having, eye problem.

Tobi’s service to this country is appreciated but the 1999 constitution which he produced is today a corrigenda, meaning a list of errors and imperfections.

While constitutions of other countries went through a referendum or plebiscite, our own did not. Even in our next door neighbor, Niger Republic, its constitution recently went through a referendum before being adopted, while ours did not go through such.

The same is the case with the constitutions of Egypt, Zimbabwe, Canada and many other countries.

A referendum is the gerund of the Latin verb, refero, and has the meaning, “bringing back” (i.e. bringing the question back to the people). The term, plebiscite, is generally similar in modern usage, and comes from the Latin plebiscite, which originally meant a decree of the Concilium Plebis (Plebeian Council), the popular assembly of the Roman Republic. Today, a “referendum” can also often be referred to as “plebiscite”, but in some countries, they refer to different types of votes, differing in their legal consequences.

Pertinently, there was no input by the Nigerian people on the 1999 Constitution. Instead, it was produced and forced on us by the military. And the way and manner it was done, is as absurd, slacking and desolatory as the contents of the constitution itself.

Let’s go back to how it was produced.

Gen. Sani Abacha, died on June 8, 1998 and in a session by the Armed Forces Ruling Council, a few hours after his death, Gen. Abdulsalami emerged as the Head of State. On July 7, 1998 Chief Moshood Abiola (1937-1998), the acclaimed winner of the 1993 Presidential election died suddenly in detention. Upon the recommendation of his then deputy, Vice Admiral Mike Okhai Akhigbe, Abdusalami appointed the Retired Justice of the Supreme Court, Justice Ephraim Omorose Ibukun Akpata (1927-2000) as the Chairman of the Independent Electoral Commission in October 1998. Akpata then rolled out his time-table for the elections and the approval for the formation of political parties.

On November 2, 1998 Abdusalami appointed Tobi as Chairman of the Constitution Debating Committee and inaugurated the committee on November 11, 1998.

In December 1998, Local Government election were held across the nation on party basis and that was how the Peoples Democratic Party kicked off leading other parties with success in the election.

On February 13, 1999, governorship election was held throughout the country. On February 20, 1999, the National Assembly election was held and on February 27, 1999, the Presidential election was held. Chief Olusegun Obasanjo scored 18,738,154 as against Chief Olu Falae of Alliance for Democracy/ All People’s Party who scored 11,110,287 votes.  The inability of the APP led then by Senator Mammud Waziri, now late, my good friend, to sponsor a presidential candidate of its own, destroyed the party and since then, the party has never recovered. Incidentally, as of the time the presidential election was held in the country, there was no constitution.  Justice Tobi submitted his committee’s report on April 22, 1999 and the AFRC ratified that report on May 3 while Abdulsalami promulgated it into a constitution on May 5. President Olusegun Obasanjo was sworn-in on May 29, 1999. A clean copy of the constitution was not even ready until after Obasanjo and the governors were sworn-in.

I remember, in the absence of the Federal Government Press, and at the mercy of the HERITAGE PRESS, privately owned, in Abuja, the company worked nonstop on the night of May 28, 1999 to make sure a few copies were produced so that Obasanjo could hold one at his swearing in ceremony at the Eagle’s Square, Abuja on May 29.

In short, Tobi’s committee worked for less than 155 days to produce the constitution. It is unfair for a country with 36 states excluding the Federal Capital Territory of Abuja, 774 local governments, over 300 tribes and over 2,000 pressure groups, to have a constitution of that magnitude produced within such a period. Tobi’s committee visited just few states, stayed most of the time in Abuja, held public hearings just for a few days, compiled its report and submitted, thinking that members of the AFRC would not approve most of its recommendations. Only a few memoranda were entertained by the committee. The committee based its report mostly on the contents of the 1979 Constitution and the unapproved report of the Karibi-Whyte Constituent Assembly inaugurated under the previous military era. The death and manner of how Abacha and Abiola died must have frightened Abdusalam into hurriedly approving most of the recommendations of Tobi so as to quit power and enjoy his retirement. He spent less than 11 months. Interestingly, Nigerians were all gripped too by the euphoria of campaign and elections that followed and we forgot about the constitution.

As Joseph Marie wrote, Toute nation a le gouvernementqu’ellemerite, meaning, “Every nation has the government it deserves”. But I do not think Nigerians deserve this constitution. Unlike the 254 page 1979 Constitution, which was properly edited and rearranged by a legal team headed by Hon. Justice J. H. Omololu Thomas, the 1999 Constitution contains a lot of contradictory affirmations. And what is a constitution anyway?

While representing Ideato/Nkwere/Isu, Dr. Kingsley Ozumba Mbadiwe (1915-1990) told the Constituent Assembly on November 16, 1977 that a constitution “is a commandment under which a country is governed”; it is an injunction, a mandate and a behest under which a nation is administered.

A constitution is designed to make sure that the country belongs to all its citizens. I mean all citizens irrespective of class, tribe, gender or religion. Our 1999 constitution only enriches the President, the governors, the legislators and their aides.

Adam Smith wrote that “no society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable”. Except for them to queue and vote every four years, the 1999 Constitution has no role for the people. It is not fully representative. It should not only be amended, it should be rejected. My mathematics teacher once told me that a curve line can never be straight. An effort must be made to produce a new one that is fully representative and will accommodate the interest and feelings of all Nigerians.