The Association of Nigerian Scholars for Dialogue regrets that these weighty matters involving our collective futures are being rushed and compressed into a debate that will take less than two months. Nevertheless, we wish to participate in the debates on the Nigerian Constitution. We offer the following as responses to the terms of reference that the Head of State has emphasized as our contribution in the firm belief that dialogue on our public affairs is helpful.

We offer these comments from members of the Association of Nigerian Scholars for Dialogue who have studied the terms of reference which the Nigerian Head of State has chosen to emphasize.

Term of Reference No. 1
The proposed provisions on the principle of zoning and rotation. Is it desirable to entrench these in the constitution? And if so, what offices should they affect? For how long and between which identifiable geographic or geo-political zones? What other ways and safeguards are there to allay fears of political domination and marginalisation of groups, individuals and other elements in the society.

The concept of zoning was originated in the Second Republic by the National Party of Nigeria. That was important as a party policy which was responding to fears of an imbalance in the exercise of power in the country. It has since been seized upon as a possible constitutional solution to the unyielding exercise of power by entrenched political forces in Northern Nigeria. Those who canvass the rotation of power seem to assume that the military's concentration of power at the Federal center is either desirable or that it will continue under civilian regimes.

As an association, we do not take a single position on this issue. However, we offer you the following remarks from one of our members on this matter as a helpful viewpoint. He writes: "It is not desirable to entrench these provisions in the constitution. It compromises the democratic process. To zone any office would entrench undemocratic ethics into our political system and render obsolete any future attempt to resolve issues on a democratic platform. The experiment of Yugoslavia demonstrates the debility of this policy. Zone would be a recognition of our lack of faith in the democratic process. The best and only way to allay fears of any type of domination or marginalisation of any of the constituent units of the federation is for us to recognize their independence. This implies the restoration of their exclusive jurisdiction in areas of vital significance to them as federating units. These areas include, for example, natural resources (energy, mines, minerals), education, and local government."

The point that is being made above is that the shift of power should be constitutionally resolved by giving to the states power and resources rather than concentrating all resources and powers at the Center. These will be achieved by a new revenue allocation formula and less involvement of the Federal Government in the affairs of the states. The states should also become the engines of growth, as they were before the military took over Nigeria's affairs.

In addition, we will suggest that the underlying problem of monopoly of the Presidency and of key ministries (of, e.g., defence, education, minerals) should be tackled seriously. Parties should be enjoined to ensure that their distribution of portfolios does not discriminate against certain areas while favoring others. It should be possible for a southern minority or an Ibo man or woman to be a Minister of Defence rather than always being assigned such petty ministries as Information.

You may wish to consider the view that serious as this matter is currently, it is an issue that is best solved by legislation -- in addition to redressing the underlying issues as indicated above.

Term of Reference No. 2
What were the merits and demerits of the provisions which call for multiple vice-presidents? How feasible or workable is the idea, given Nigeria's experience with the arrangement in the Second Republic of a single vice-president, and the Deputy Governors under the 1979 Constitution?

What is the reasoning behind this suggestion? It is unfair to the nation for suggestions like this to be made without proper clarification. What is wrong with the old system of one Vice-President? Is there a suggestion that our past problems owed to lack of several Vice-Presidents or that having multiple Vice-Presidents will resolve any of our political problems?

One of our members has reacted thus: "We do not see any merits in this provision. A single vice president is the preferred option in a presidential federal polity. To introduce three vice presidents would create political problems for the president as to whom he would "appoint" to replace him on given state functions. To have three vice presidents as proposed in the Draft Constitution would be an unnecessary burden on the economy as two of them will be grossly underutilized, and thus facilitate a destabilizing factor in the presidency. With a single vice president, the line of leadership succession (or acting in the absence of the president) is clearly defined in the Constitution."

Term of Reference No. 3
What constitutional provisions could serve as the most effective antidote to future forceful seizure of political authority other than through constitutional means?

This is an important question which will test just how serious the military establishment is on avoiding the shameful repetition of military coups d'etat in our history. We offer three suggestions.

First, there should be a clause in the Nigerian Constitution empowering the United Nations and all its agencies to reject any Nigerian delegations and representatives whose mandates come from military personnel who overthrow an elected government of Nigeria.

Second, we may consider a variation of the practice in India with respect to military establishments. One of our members has put it well: We may consider the desirability of "establishing regional military commands. If we accept the existing six zones as given, then we should have six regional military commands. The bulk of the personnel (say 65%) in each command is to be composed of ethnic representatives of that zone, thus eliminating the notion of occupation currently associated with the Nigerian military in certain zones of the country. The Zonal Commander would be an indigene of the said command. Each zonal commander will be a member of a Federal Military Command Council (FMCC) to be chaired by the Chief of Staff, who will not have the powers to dismiss, demote or discipline any ranking officer without the unanimous consent of all members of the FMCC. The Permanent Secretary of the Ministry of Defense will serve as secretary of the FMCC which will be an advisory body to the Minister of Defense. The regional commands would be independent of one another. It will render the military a quasi-unitary organization that will enhance the interests of Nigerian federalism. A military coup engineered by/or in a particular regional command shall have no effect in the other commands."

Third, Nigeria should authorize the Commonwealth to enforce its laws with respect to any coups d'etat. Participants in a coup d'etat shall be subject to arrest on account of treason or murder, even outside Nigeria.

Term of Reference No. 4
With a view to [sic] developing [devolving?] more powers and responsibility to lower tiers of government, the draft has created those legislative lists, thereby expanding the competence of state and councils in sectors such as education, agriculture and health. More ideas as to how to make this workable will be welcomed

This term of reference is crucial to the entire examination of our future. In general the wisdom of the arrangements of the 1963 Constitution is excellent and should be revisited. The wording of this term of reference is remarkable and probably betrays the military's hostility toward federalism. In a federal system, power is shared, not devolved from the centre "to lower tiers of government." It is not up to the Central government to dictate what powers should be devolved. Devolution is practised in unitary systems of government, such as the United Kingdom. It breaches the spirit of federalism and its usage should not be entertained in a federal constitution such as ours.

In a truly functioning federal system of governments, the federal government serves as a government of last resort. Under military rule in Nigeria, the federal government has become a government of first resort. This exercise and debate should understand that what is involved here is the restoration of federalism. That is why the 1963 legislative list is perhaps the best to consider as a base-line for our future. In 1963 the constituent units of the federation were growth centres. We must return to that pattern by allowing states to have the legislative and revenue bases for their operations.

In this regard, we commend to you the following comments from one of our members: "The division of powers is the bedrock of federalism. We regard a federal system as a product of negotiations among sovereign political entities that have agreed to come together for a common objective. Besides the unquestionable areas of foreign affairs and defense which the federating units relinquish to the central government, any other area where the central government exercises some jurisdiction is at the discretion of either all or one of the federating units that may elect to invite the involvement of the central government in the given area. The examples of the United States, Canada, Germany, Australia, and Switzerland underscore this point. In order to make federalism "workable" in Nigeria, we propose the following areas of jurisdiction:

"Exclusive Federal Jurisdiction
Defense, Foreign Affairs, International Trade, Aviation, Post Office and External Telecommunications, Custom and Excise, Currency.

"Concurrent Federal-State Jurisdiction
Creation of States, Communications, Housing, Industry and Commerce, Recreation and Sports, Research and Development, Police, Environment, Immigration, Transport, Fishing and Fisheries, Incorporation, Insurance, Public Holidays, Division of Public Revenue

"Exclusive State Jurisdiction
Natural resources (energy, mines, metals, minerals), Agriculture, Forestry, Education, Regional Development, Local Government, Creation of Local Councils, Language, Culture and Social Policy, Land Tenure, Customary Law and Traditional Rulership."

Term of Reference No. 5
The draft has attempted to address the issues of the principle of derivation as a criterion for distributing the national wealth by increasing the current percentage to 13. Government welcomes ideas on how to make this feasible.

Where does this magic number 13% come from? An historical footnote may help the CDCC to gauge the sense of justice that is under attack here. By some strange coincidence, apart from the coal mines in Enugu which have not been a great revenue source, mineral wealth in Nigeria has been concentrated in minority areas. That is why the revenues flowing from them have been nationalized. If these mineral resources had been in Yoruba or Hausa/Fulani areas, the history of Nigeria would have been totally different. One hopes that there will be some fair-mindedness in any assessment of revenue allocation.

There is also the pathetic spectacle of governments relying on oil revenues for their livelihood. "National wealth" should rely more on production of wealth than on mining of underground wealth. Any constitutional formula for sharing wealth should involve some incentive for efforts that harness local resources for greater productivity.

Apart from these words of caution, we offer you the following comments from one of our authorities on federalism: "The 13% provision in the draft constitution ridicules the concept of federalism. An examination of this issue in other federal states, for example, Canada, the United States, and Australia, supports the a 100% derivation which, in fact, it was in Nigeria in 1953. First, it is essential that we recognize the proprietary rights of the federating units over the resources located in their respective territories. They did not join a federation to forfeit this right. Thus, in order to 'make this feasible' it is vital that we propose a realistic option that would (1) recognize the independence of the federating units, and (2) facilitate a conducive atmosphere for the smooth functioning of Nigeria's economic union. Where the 100% proposal is rejected due to the correlation of political forces in contemporary Nigeria, then we recommend a minimum of 50% derivation, 20% to the federal government, and 30% to the federation account as was established in 1954. Federating units would draw from the federation account proportional to their contribution to the national economy."

Term of Reference No. 6
Over the years it has become fashionable to create more and more commissions at the federal and state levels and entrench same in the constitution. Should all such commissions receive constitutional sanctity, thereby making changes to them near impossible in view of the tedious and stringent requirements for constitutional amendments; should this become necessary?

This is a relevant question and speaks directly to the lack of a clear distinction between constitutional processes, embodying timeless principles of governance and political conduct, and more fleeting problems that legislatures should be solving. Compared to most other constitutions, Nigerian constitutions are over-sized because they are choked with all sorts of material that legislators should deal with. Delete as many commissions as you can afford from the Constitution!

Term of Reference No. 7
In similar vein, should the Land Tenure Act continue to enjoy an inflexible constitutional sanctity as is currently the case, in view of the manifest and untold hardship that this had occasioned in the last two decades? How can we retain its ideals while avoiding its rigidity? The draft has a proposal for the establishment of a National Judicial Commission, a body designated to enhance the independence of the Judiciary in Nigeria. How workable or compatible is such a body within a Federal system in which greater autonomy is being developed to the lower federating units?

The land Use Decree is one of the most arrogant acts of the Federal Military Government. It is morally wrong and should be expunged from the Constitution. It is noteworthy that it is one important reason for the disaffection of Southerners from the Federal Government. This governmental act (enancted as the Land Use Decree in 1976) alienates citizens' lands. It is ignominious and deserves to be deleted from the Constitution.

Term of Reference No. 8
The draft has introduced the novel idea of a constitutional court charged with the responsibility of handling election petitions and leaving matters pertaining to the enthronement of human rights. How justifiable is it to confer such jurisdiction on the court, and what impact will have on litigants?

We do not understand why this new Court is being introduced into the Nigerian Constitution. Is there a suggestion here that olden constitutional problems owe to the failure of the Courts to enforce laws. Most Nigerians view this court with suspicion. However, we would rather defer to the judgement of such expert organizations as the Civil Liberties Organization of Nigeria and the Constitution Rights Project on this matter.

Term of Reference No. 9
How workable is the novel provision for proportional representation of political parties in the formation of the cabinet within a presidential system of government? Similarly, how workable is the provision which permits ministers appointed to the federal cabinet to continue to retain their seats in the National Assembly?

Why is this unusual and complicated device being suggested at this time? Is it because there is a suggestion that our political problems have arisen from our system of elections? Is there any federal system of government that is known anywhere that has tried out this form of representation? Will it apply to Federal elections as well as to state elections?

Other than posing these questions we have no firm recommendations on this unusual clause in the draft Constitution. We would defer to the CLO and the CRP as well.
 
 

Signed:
 

Peter P. Ekeh
President
Association of Nigerian Scholars for Dialogue

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