A New Constitution for Nigeria: Some Fundamental Issues Arising

Published on October 23, 2012

From the inception of its current Constitution in 1999, Nigeria has been in search of a new one to put its federal system and general governmental structures in a more satisfactory form. The country was on the verge of complete disintegration when General Sani Abacha suddenly died on June 8, 1998, thus ending his five years of brutal and nihilist dictatorship. Immediately, there was intense pressure on Abacha’s successor, General Abubakar Abdulsalam, to hand over power to a civilian administration within a few months’ of his assumption of office. Such pressures came from impatient Nigerian politicians as well as from the international community. For instance, the secretaries-general of both the Organisation of African Unity (now African Union) and the United Nations urged General Abdulsalam to go ahead with the elections already scheduled by Abacha for the following October. In the event, General Abdulsaam stayed in power for only a little over ten months (June 8, 1998 to May 29, 1999).

As a result of the great rush, the Constitution that came into force on May 29, 1999 was not only poorly drafted as a legal document (as I have tried to show in several published articles), it was also found to be unsatisfactory in its contents by many individuals and different sections of the country. Consequently, many issues have been raised and canvassed for the protection of both the general interest and sectional interests. Parts of the Constitution have even been amended by the National Assembly.

Obviously, one could view the federation from any number of angles. In this article, I am going to touch upon only three issues which I consider to be fundamental for the unity and harmony of the federation. The first is whether the federation is made up of “sovereign nations” so that there could be a “sovereign national conference” to review its structure to enable its “sovereign” component “nations” to opt out of the federation if they so choose. The second issue is whether the different communities within the federation “own” the sections of its territory to which they are indigenous, thereby giving them the right to claim exclusive (or just superior) entitlement to the natural resources found in those sections. Finally, I wish to consider whether the Federation as a corporate entity does or does not owe a duty to assist the areas with peculiar problems or needs.

Let us take a brief look at the origin of the Nigerian Federation. The country was put together, and its subsequent evolution into a federation was moulded, by an extenal authority In the process, that external authority disregarded pre-existing linguistic/ethnic boundaries. Besides, the linguistic/ethnic groups on their part did not confront imperialism as united groups nor did they claim the right to self-determination, then or afterwards. By contrast, the nationalism and nationalist movement that emerged in 19th century Europe asserted from the start the right of each linguistic/ethnic group to self-determination. According to Hans Kohn, in the nineteenth century, the age of nationalism, the populations [within the Hapsburg Empire] regarding themselves as belonging to the same ethnic and linguistic group felt more and more the desire for establishing a bond of unity across historical borders and this trend became powerful centrafugal forces threatening to disintegrate the Hapsburg Empire” (p.20). However, “The process of national awakening among the various nationalities started only in the decades following the downfall of Napoleon [in 1815]” (p.18).

[Hans Kohn: The Hapsburg Empire 1804 – 1918 (1961 ed.].

One major problem now confronting Nigeria is that an increasing number of its various peoples are beginning to think and agitate in the mode of 19th century European nationalism, conceiving their linguistic/ethnic groups as being entitled to self-determination. Some of the larger groups in particular are awakening the consciouness of their members, calling for a “sovereign national conference” to determine afresh the question of whether the different ethnic groups within the Federation should continue to stay together and on what terms. And also in regard to other fundamental issues, people talk as if the country’s Constitution were a carbon copy of the American one. One crucial example of this line of thinking generates the arguement that because each state in the American federation controls the mineral resources located within its territory, the same practice should operate in Nigeria which is a federation too. Most Nigerians seem not to appreciate the fundamental differences between the two federations.

While it is true that the United States of America too is a federation, its emergence was fundamentally different from that of Nigeria. It was formed by existing independent political entities (in 1789), which were then free to determine what degree of sovereignty they would give up to a central authority and what they would retain for themselves. In the event, they gave up very little to the Centre, mainly inter-state commerce, common defence and the modest degree of involvement in foreign relations they cared to get themselves into at that stage. Even a common currency for the whole federation was to come later. The much enhanced position now enjoyed by the Federal Government vis-a-vis the states in America has been due largely to the role of the Supreme Court, especially with respect to the protection of individual liberty, while its power and prestige on the international stage soared in response to events in the outside world only after the First World War.

Unlike the American model, the Nigerian Federation resulted from British imperialism which did not, at any stage of the country’s development, give the different linguistic/ethnic groups the option of self-determination. Those groups did not act as united ethnic groups in their encounter with imperialism, nor did they assert the right of each ethnic group to self-determination. Consequently, they were not, and still are not, in a position to determine what degree of their soverignty they would give up to the Centre and what degree they would keep for themelves. Besides, each of the emergent federating states in Nigeria consisted of several ethnic groups and even after they were further subdivided, each of them still remains multi-ethnic and multi-lingual.

It is also crucial to recall that after the British created Nigeria, and were nurturing the new nation-state, they took resources from whichever part of the country they could garner them to administer and develop the whole country. They mined coal from the eastern part of the country to fire the newly built railway system, an important engine of development. They took revenues from the cotton and groundnut farmers from the north and cocoa cultivators from the west. Later they took the enormous natural resources provided by the River Niger to provide electricity for the country, etc.

Consequent upon the above historical development, the reality is that Nigeria came into existence and has, for close to a century, been nurtured as an indivisible corporate entity to which all the ethnic groups have contributed. The groups and communities comprised within the Federation now possess only such rights as are recognised by the Federation’s Constitution and the laws made under it.

However, the situation is not unchangeable. An alteration in the relationship between the various ethnic groups can be achieved but this has to be with the concurrence of all the ethnic groups, large and small, making up the Federation. This could be done through a national conference or a constituent assembly in which each nationality would be suitably represented. In contrast, a “sovereign national conference” at which each ethnic-nationality will be free to assert its right to unilaterally determine its own future within the Federation or outside of it might lead to the use of force. If such a situation should arise, it would be pure fantasy to imagine that people would be able to continue to live outside their traditional ancestral home areas as they are doing at present.

The second question raised in this article relates to natural resources. Do the communities own the pieces of territory they occupy traditionally, comprising the land surface, the things that lie beneath that surface and the airspace above the surface? . There are three broad categories of natural resources available to a nation. These are the land space it occupies (including such things as water, rocks, mountains, etc) on the surface of the earth; the air space above the ground; and the minerals occurring below the surface of the earth. The land surface and the air space above it are the most enduring of all the natural resources possessed by a nation. They literaly define the boundaries of the nation and unite its peoples. They provide the framework within which the nation exercises its sovereign authority internally and projects its power and prestige at the international level.

The current Constitution of the Federal Republic of Nigria provides in its section 4(1) as follows:

“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.”

This means that every citizen of Nigeria has an equal access to the lawful use of the country’s land territory and air space above the surface. No citizen has the right to deny another citizen the lawful use of the Federation’s territorial space.

In addition to the constitutional guarrantee of the common use of the country’s land surface and air space, the Constitution prohibits any commnity from using the waters flowing through its territory as its exclusive property but can only use it subject to national control. The Constitution provides in Item 13(c) of the Second Schedule as follows:

“The National Assembly shall have power to make laws for the Federation or any part thereof with respect to – ..(a) ..(b) ..(c) the regulation of the right of any person or authority to dam up or otherwise interfere with the flow of water from sources in any part of the Federation; .. ”

Thus, the right of every citizen of Nigeria to own and use land in any part of the Federation is guarranteed in the Constitution. Similarly, his right to use the Federation’s air space in accordance with the law is not in contention either.

If the natural resources comprised in the land surface and the air space above the land are common national resources to be used and enjoyed by all the citizens of Nigeria in common, what makes the natural resources lying beneath the surface of the land different? If communities are to be regarded as “owning” the natural resources “produced by” (that is found in) their areas, do the communities which “produce” (in which are found) the waters used to generate and supply the electrical energy of the country “own” those waters? The strategic and economic importance of rivers and other sources of water as natural sources and a major form of national power cannot be denied. This reality is underscored by the fact that many nations have gone to war, or narrowly avoided going to war, over the control and use of rivers and other sources of waters.

Why is there such bitter contention in Nigeria about resources found under the earth’s surface but not about those occurring on the land surface and in the airspace above it? Such bitter contention would seem to have arisen in part as a result of the terrible environmental degredation caused in the areas where oil minreals are mined. The people’s loss of their means of livelyhood and clean water and the long neglect of the people affected by the damaging effect of mining operations have naturally added to the acrimony. Besides, the desire by the different sections of the Federation for a greater share in the nation’s wealth by whatever means is a factor. As part of the controversy, there have arisen the idea and claim that the people in whose areas of the Federation where the mineral resources are found should enjoy, if not the whole of the revenue derived from them, then at least, a high proportion of it.

In support of the above position, the analogy is made that at an earlier period in the history of the Federation; the regional governments of the areas where cocoa, cotton and groundnuts were produced were allowed to keep fifty percent of the revenue accruing from the export of those crops, the areas where oil is now “produced”should be allowed to keep a similar portion of the revenue coming from the oil resources. It should be pointed out, however, that there is a fundamental difference between the two sources of revenue. While the oil is mined out of the ground with modern technology by big oil companies, each farmer who grows cocoa, groundnuts or orcotton has to use his personal physical labour and that of his family to plant, tend and harvest the crops. It used to take six to seven years for cocoa trees to mature and produce fruit. Because of the amount of labour required to grow cocoa, many farmers did not send some (or even any) of their children to school. They needed the children to provide labour on the farm. The present writer ought to know: he had to run away from the farm when nearly sixteen to start school.

On this issue, one important point to bear in mind is the impermanence of mineral resources. A nation exists in perpetuity, just like its economic fortunes. Today, most of Nigeria’s cash revenue comes from petroleum resources located in the South. But solar power may take over the energy scene in future. For Nigeria, most of that solar energy resource will be derivable from the sunnier Northern region which, in any event, constitites eighty percent of the country’s land mass. How then will the revenue derived from solar energy be shared between the “producing areas” and the Federation? And even without waiting for a solar-dominated future, what about the electrical energy-producing River Niger at Kainji Dam and other rivers in the country? Most of the country’s industrial production has depended on electrical energy form that source for more than fifty years. How does one calculate and share the revenue accruing therefrom? How does one calculate eighty percent of the “income” coming from the country’s land surface (a natural resource)? It would also be hard to evaluate the farm produce coming from the eighty per cent of the nation’s land mass that feeds the nation.

The answer to the controversy surrounding the sharing of the revenues derivable from the country’s natural resources is that, while as a corporate entity the Federation owns all the natural resources in the country, it owes in return a duty to provide for the areas with special needs. This is the third point I am looking at in this article. Providing for areas in need would be the best approach to dealing with peculiar problems in different parts of the country, such as massive environmental degredation such as in the Niger Delta; serious flooding caused by dams or by the dredging of rivers for transportation; large-scale natural flooding; serious erosions causing large-scale environmental damage to agriculture and transportation; and so forth. At present, apart from the current nation-wide flooding, the most conspicuous of these problems occurs in the Niger Delta region and the Federal Government is taking the matter as a national assignment as it should

Twelve years ago, I warned that unless the glaring underdevelopment in the northern part of the country and the terrible environmental degredation in the Niger Delta were tackled as national assignments, they would constitute serious obstacles to the establishment of democratic government in the country. I wrote:

“These variations [in religion, culture, etc between the different parts of the country] are accompanied by an uneven development, particularly between the North and the South, in education, industrial capacity, trade unionism, media coverage and people’s consciousness of socio-economic issues in the modern state. . .. .

There are major forms of degredation in the oil producing areas, .. .. Unless the remedying of uneven development in the country, environmental degredation in the oil producing areas and desertification in the far North are going to be taken as national assignments, they constitute serious destabilising factors in the political framework.”

[Understanding the Nigerian Constitution of 1999 (M I J Publishers) Lagos: 2000, p.34]

The civilian Government under Chief Olusegun Obasanjo that came into office in May 1999, continued to view the Niger Delta agitation as a rebelion to be suppressed by force, just as the military rulers before it had done. Fortunately for the country, late President Musa Yar’ Adua was persuaded to chart a new course. [Some say he was forced to do this in order to secure the flow of the oil then being seriously disrupted and reduce by the rebellion in the region.] He negotiated with the agitators (now officially known as “militants”) and offered amnesty to those of them willing to lay down their arms. His Vice-President and subsequent successor, President Goodluck Jonathan, himself from the area, continued the approach.

Under this new conciliatory Federal Government policy, many of the former militants have now been sent abroad for technical trainng while others are being trained in Nigeria. A University of Petroleum Technoly has been established in the region. On the whole, a great deal of money and organisational effort have gone into solving the huge problems of the area, with a whole ministry and a development commission established to look after its affairs. Now, relative peace reigns in the area. Had this sensible approach been adopted sooner, Nigeria would have saved many lives and greatly lessened human suffering. Furthermore, it would have been much cheaper for the nation.

Of areas with special needs I mentioned above, we should now take a look at the second one, the northern part of the country. We may ask why should the North be seen as an area with special need. To start with, when an area containing 80 per cent of the country’s land mass has only slightly more than half of its population, then the issue of relative cost of administration and development arises. In a developing country, it requires relatively more resource and greater effort to administer and develop a sparsely populated region than is required for a more compact population occupying a similar size in area. Consider the difficulty of providing primary education for small scattered villages. This would necessarily be a problem for an industrialized nation to which a large land mass may be of great advantage.

In addition to the problem of size of territory, we have the problem of educational backwardness. A major factor contributing to this problem was the British colonial policy of not allowing the Christian missions to proselytise in the Muslim areas of the North starting from the First World War. Virtually all of the western education received by Nigerians at that stage and for years later was provided by the Christian missionaries who found it essential for the spread of their faith. The Turkish Empire was an ally of Germany in the First World War and it embraced the Arab and much of the Muslim world. The British were therefore fearful of a possible uprising among their Muslim subjects in support of Turkey. They reassured the religious leaders in northern Nigeria (as they also did in the Sudan) that they would not interfere with their religion. Christian inroad into the North would have resulted in many Muslim children being converted into Christianity. However, the Christian missionaries were allowed to proselytise in the non-Muslim parts of the North (now the Middle Belt) which had not been conquered by Dan Fodio and his jihadists. Consequently today, non-Muslim parts of the North have a much higher level of western education than the far North.

This historical development has in no small measure contributed to the low level of western education in the far North. According to the Federal Government of Nigeria, there are now no fewer than nine and half million children of school age in the North who do not attend any school or who only go to quranic schools for the almajiri or street children The actual figure may be much higher. Most of the parents of these children are not very poor and ignorant. Their children too will grow up being ignorant, very poor, helpless and hopeless in life. When this scale of ignorance, poverty and hopelessness in parts of the North is appreciated, one could easily understand the pivotal role of the people’s condition in the Boko Haram insurgency in the area. To deny this causal connection would be to ignore the lessons of history and political sociology.

For example, in Western Europe in the 1920s and 1930s, large numbers of people were attracted to the communist ideology on the left while on the right fascism appealled to the masses movements in support of the dictators, both in the context of poverty and mass discontent. The consequence of the prevailing condition was a great disaster for the whole world. The situation is depicted by the historian David Thompson this way:

“By 1932, there were 30 million people unemployed in the world, in addition to millions who were doing short hours and more millions in Africa and Asia about whom there was no statistical knowledge. The immediate result was vast human suffering, personal frustration and social hardship; the ultimate result was that the victims turned, in desperation, to extremist political movements, of either communism or fascism, which promised to cure unemployment and provide a new basis for national recovery and material prosperity. Never were conditions in the western world more favourable to the ambitions of any demagogue or adventurer who had the insight and skill to exploit mass discontent.”

David Thomson, World History, 1914 – 1961 [London: Oxford University Press] 2nd Ed. 1963, p.117.

It seems quite clear to me that unless we accept that Boko Haram sprang from and (in addition to the operations of the Federal Government’s security agents) is now fuelled by massive poverty and socio-economic discontent, we will not be able to search for its solution in the right direction. Last week, in a reprisal attack for the Boko Haram’s killing of one officer and injuring some members of the JTF (Joint Task Force) in Maiduguri, Bornu State, the JTF allegedly killed 30 people and burned down “dozens of houses”. Religious, political and traditional leaders in the area protested against the outrage. In its annual report for the year 2011, Amnesty International accused the Nigerian police of unlawful killings in the country and also “.. .. said that the government had not published the report on the July 2009 clashes between the Boko Haram and security forces in which more than 800 people died, including police officers and the Boko Haram’s leader, Muhammed Yusuf.”

The indiscriminate killing of innocent people in the name of fighting the Boko Haram insurgency will not solve the problem. On the contrary, it will actually assist the insurgents to enlarge their rank and increase their general support, as has been shown in other parts of the world.

I would like to repeat what I advocated twelve years ago. Poverty in the North must be tackled as a national assignment. The Federation as a corporate entity derives resources (in various forms) from its different sections. In return, it owes the duty of assisting its needy sections. Massive organisational resources and efforts need to be put into education, health, rural roads, agriculture, energy generation and distribution to aid industry and provide employment and other forms of social upliftment. The detail of what needs to be done should be identified through empirical studies. Private investment in education and all areas of development must be promoted.

The above approach would not only save many lives and reduce the suffering of millions of innocent people, it would preserve the Nigerian Federation and be much cheaper in the long run. If the problem is not solved rationally without sectional sentiment and bickering, it may engulf the whole Federation and threaten its survival.

The Author
Hon Justice O. Oluwadare Aguda (rtd) formerly Judge of Ondo State High Court Chairman, Ondo State Law Commission (2001 – 2005) is a consultant in Nigerian Law. He is the author of Understanding the Constitution of Nigeria 1999 Lagos: MIJ (Professional Publishers) 2000.