PREAMBLE

The Centre for Democracy and Development (CDD), an institution set up by West Africans to work towards the creation and consolidation of democracy in the region, convened an expert group meeting in London between November 16 and 17, 1998 on the method and process of constitution-making in Nigeria. The International Institute for Democracy and Electoral Assistance (I-IDEA) in Sweden assisted the CDD in this task.

The expert group meeting was convened in part, as a follow up activity to the meeting of the leaders of Nigeria's pro-democracy and human rights community facilitated by CDD last August, after the announcement of General Abubakar's transition programme. That meeting urged democracy activists and other civil society workers to participate actively in the constitutional debate. The scale and intensity of the debate that has taken place since the government's formal announcement on holding elections underlines the lessons that the population has learnt from the failures of the past. CDD was therefore motivated to organise the workshop on the conviction that the exclusive concentration on elections to the neglect of a constitutional framework poses a major danger to the sustainability of the democratic project.

At another level, the idea of bringing together experts from other settings into direct contact with Nigerian activists and academics was informed by the singular need to draw on comparative knowledge from others parts without reinventing the wheel and mindful of the unique situation every country is in. We were by no means expecting the invited participants to offer a panacea to the problems Nigeria is currently grappling with. Instead, the team was put together to interact and advise civil society and government on some of the real and perceived inadequacies in the 1995 draft constitution and suggest a process based institutional mechanism for managing ethnic, religious, gender and other forms of polarisation among the constituent parts of the Nigerian political unit.

These experts, particularly those invited from abroad, were nominated on the basis of their individual participation as civil actors in constitution-making in circumstances, at times, more trying than Nigeria's in which pragmatic and innovative solutions have been found to resolve deep-seated conflicts. They include: Deputy Speaker of the South African parliament, Baleka Mbete-Kgositsile and Witswatsrand Law Professor Halton Cheadle both of who were involved in the South African constitution making process, Bereket Selassie who chaired the recently concluded Constitution-Making process in Eritrea, Reg Austin, former Director of Legal Services at the Commonwealth Secretariat and now Director of Programmes at International IDEA, who was involved in the Zimbabwean and Namibian constitution-making process, Kamal Hussein - former Attorney-General of Bangladesh and until recently Chair of the Commonwealth Human Rights Advisory Commission - who has been involved in constitution-making processes in Pakistan, Bangladesh, India and Thailand and Mary Engena-Maitum, an Electoral Commissioner in Uganda, who previously worked on the Ugandan constitution-making process. >From Nigeria came Constitutional and Public Law experts, Jadesola Akande and Itse Sagay as well as scholars of federalism - Peter Ekeh, Attahiru Jega and Adele Jinadu. Democracy activists Ogaga Ifowodo of Civil Liberties Organisation and Usman Bugaje of the Network for Justice joined the participants.

The two-day workshop examined specific issues in relation to the content of the constitution, but concentrated mainly on process and best practice mechanisms- especially as it relates to the production of an inclusive document and strengthening constituencies whose support is critical to the attainment of the overriding goal of a "living" document owned by the people. Workshop participants enjoin Nigerians to emphasise openness, consensus and restraint during the debate on the constitution since the overriding goal of this initiative is to assist in producing a constitution that advances democratic governance. On the strength of this, the workshop identified the fundamentals of constitutionalism, highlighting the key areas that require institutional changes for the Nigerian political system to be equitable, transparent and accountable. The proposed areas for reform include: "Power shift" from the Centre to the Constituent/federating Units; Effective Independent Commissions for the promotion of transparency and accountability, Representative Institutions for Citizens participation in Democracy & Power Sharing; Sustainable mechanisms for Economic Development, Social Justice; Rule of Law; Human Right and Gender Equality.
 

PROCESS

In recognition of the above as the areas in need of enduring reforms in a functioning and people oriented constitution, the workshop then focussed on issues of structure and process. The workshop notes that there are objective practical problems to be encountered, if civil society insists on comprehensive changes to the current constitution. In the view of the participants, the time-table guiding the current transition programme makes it almost impossible to achieve any comprehensive changes to the flawed 1995 draft constitution document. However, participants from Southern Africa and Asia emphasise that this need not affect the quality or legitimacy of the eventual product, provided broad-based, constitutional principles are negotiated and agreed by all interested parties in the military, civil society, among politicians and the business community from the outset. A comparative assessment of constitution-making process in other parts of the world indeed reveals that such principles have a high chance of success when they emphasise process over content.

For example, the recently agreed 1997 Thai constitution started life with the National Assembly and Government elected under the 1992 Constitution agreeing to a significant amendment of the constitution or the preparation of an entirely new constitution by an indirectly elected Constitutional Drafting Assembly of several actors in civil society and across-section of the Thai population. In South Africa, participants note the adoption of an interim constitution containing 30 constitutional principles, which built in the process of consultation and constitution making into the interim document.

Participants were unanimous that if the process of constitution making is to be inclusive and successful, this must begin with a number of steps. Amongst these are:

1. That the 1995 Constitution be promulgated as an Interim Constitution - after which the government that emerges in May 1999 will begin a full process for the making of the Constitution;

2. That the process for the Constitution and the consultation should be written into the Interim Constitution to ensure an inclusive, participatory approach in which public input is paramount;

3. That the process must adopt a specified series of benchmarks to ensure openness and reflect the demographic character and gender complexion of the Nigerian state; and

4. That the 1995 Constitution should be amended in some specific areas immediately so that it can serve as a workable Interim Constitution for the newly elected representatives of the people.
 

GENERAL PRINCIPLES

Participants promoted the idea of an "incremental constitutional framework" in the face of opposition to political reform by conservative elements in the military, bureaucracy, political parties and business sector. That is why the need to compromise by sometimes accepting a weaker version of a reform in order to secure the precedent for future efforts to strengthen the reform process is crucial. South African participants cited, as an example, the multi-track nature of negotiations they had to engage in with the military, with extremist Afrikaner organisations and even smaller players despite the overwhelming fact that the ANC could impose its will as a controlling majority. Whilst this created problems within the ANC constituency that were eventually overcome, the constitution enjoys a high degree of legitimacy even amongst people who are not supporters of the ruling party.

Therefore, a set of general principles is not only important to the Interim Constitution, they may also form the basis of the comprehensive document. The general principles that should guide the amendment of the 1995 Constitution (and indeed the process for a final Constitution) should include the following:

1. The issue of over-concentration of powers at the Federal level should be addressed. The government should be concerned, for example, about power sharing, revenue allocation, amongst other things, with a view to significantly increasing the allocation of resources to local and mineral producing areas.

2. The workshop suggested the need for the de-centralisation of the Police, not as it is presently constituted but one that will derive final authority from the local authority and not the central government.

3. A consideration for Gender Equality has become particularly urgent, because society, by discriminating against women, was ultimately under-developing its own foundation too;

4. The promotion of Independent Commissions with broad investigatory powers and prosecutorial authority to promote accountability and transparency in government;

5. The Enforcement of fundamental rights should be reserved in the High Court. The attempt to transfer such to a constitutional court, with only zonal representation, will amount to depriving citizens an easy access to enforcing their constitutional rights.

6. Review of the fundamental principles of party formation is crucial. The electoral process should be specifically dealt with. This should not be construed as an interim process. For example, Section 41a of the draft 1995 Constitution is a breach of the right of association and should be amended. The membership of the National Electoral Commission should reflect a balance of interest in the political parties and the geographical spread.

7. The Authority of the Federal Government - with reference to section 12 of the 1995 Constitution should be dealt with. The Federal Government should not have the powers to take over a state government at will. The criteria, which constitute an emergency, should be highlighted. (Participants cite as examples the four pages of clauses guiding emergency powers in the South African constitution and similar clauses in the Thai and the Eritrean Constitutions). Provisions should be made for the judicial review of the validity of any such attempt to impose emergency powers by the Constitutional Court.

8. Land and Mineral Rights should be addressed with the view to arrive at a just and equitable revenue allocation formula.
 

CONCLUSION

Since the constitution represents an important benchmark in the political reform process in Nigeria, participants believe the domestic and international environment should be sensitised to the need for an enduring constitutional reform as the bedrock of the on-going elections.

The Expert Group meeting urged the Centre for Democracy & Development to work with civil society organisations already engaged in the campaign for constitutional reform to promote the virtues of an interim constitution that would eventually result in a full, inclusive and participatory constitution-making process. In particular, the meeting urged CDD & I-IDEA to reproduce the outcome of this meeting and circulate widely at the forthcoming Conference of Nationalities and other similar initiatives across the country.

In addition to the current campaign for constitutional reforms in civil society and the media, participants urged that autonomous centres of influence be encouraged to advice the military regime not to construe the emergent document as a final product. It will neither succeed in regulating the conduct of politics in an accountable and transparent manner nor produce equitable, gender sensitive or sustainable democracy. In order for the eventual product to reflect more than the struggle among competing elites to control the political system and national wealth with little regard for the rest of the population, the process and principles highlighted above represent the minimum irreducible benchmarks for permanent military disengagement and sustainable, meaningful democracy.

END OF DOCUMENT

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