By Ebun-Olu Adegboruwa.
This is the concluding part of this article which is segmented in five parts: Excerpts.
IN the concluding part of this seminar paper, the focus will be on recommendations and solutions, to all the issues so far diagnosed as plaguing the enthronement of justice as the bedrock of democracy in our land.
RECOMMENDATIONS ON ENTHRONEMENT OF JUSTICE IN THE DEMOCRATIC PROCESS IN NIGERIA
THE MAKING OF THE PEOPLE’S CONSTITUTION
Scholars have often termed the preamble to the Nigerian Constitution to wit: “We the people of the Federal Republic of Nigeria do give ourselves this Constitution”, as a lie. This cannot be faulted technically speaking, as the making of a Constitution through military fiat, cannot be termed to have truly emanated from the people, as military dictatorship cannot birth democracy and enthrone a peoples’ Constitution. The foundation for the birth of the 1999 Constitution is weak and there is nothing to build on, borrowing a leaf from the principle in the case of Macfoy v UAC, that something cannot be placed on nothing and be expected to stand. A Constitution must derive its legitimacy from the people through consensus, dialogue and compromise and not through fiat.
The Voice of America Learning English series titled: “The making of a Nation, with the sub-title: “The Making of the Constitution, published in its website (https://projects.voanews.com/making-the-constitution, gives us a clue on how Nigeria can midwife a new Constitution. According to that series, the process of making the American Constitution began with the assemblage of 55 men from 12 (Twelve) States at a Convention which later became known as “The Philadelphia Convention”. The delegates then elected among themselves George Washington as President of the Convention. Unlike the Political Reform Conferences which are held in exquisite centers in Abuja, the delegates met five and sometimes six days a week, in the Assembly Room of the State House, with men crowded around small tables and many took notes on paper with quill pens dipped in ink. At the end of the exercise, the delegates all signed the documents and the draft was referred to the Confederation Congress at the time. In the Congress, a vote was taken mandating representatives to go back to each State to hold a convention to vote on the proposal for ratification and then the votes were collated by the Congress and the Constitution became legal.
Under the Nigerian situation, we can adopt the same model, where each State, civil society groups, religious, traditional and professional bodies could be empowered by a motion at the National Assembly, to send delegates to work on a draft Constitution. Thereafter, this can be transmitted to the National Assembly and representatives would go back to their States, to hold a debate, make inputs and vote thereon, the votes will be transparently collated by the National Assembly and passed as the People’s Constitution.
In discussing the new people’s Constitution, there must not be any limitation to issues that can be discussed. Whilst I appreciate General Gowon’s position that ‘To keep Nigeria One is a Task that must be done’, in drafting a new Constitution, the people must be free to discuss the continued union of the Country and the terms for that union. This is the only way Nigeria will have enduring peace and stability, which will translate Nigeria to become a nation and a democracy, where justice shall reign and flourish like streams of living water. In order to ensure that the peoples’ Constitution entrenches justice and strengthens democratic institutions, values and ethos in the polity, it must also address the following:
a. A RESTRUCTURED FEDERALISM which promotes a competitive economy and thrives on resource control by the constituent units and payment of taxes to the centre. It must address the allocation of resources in a manner that promotes more economic activities in the States.
b. The Establishment of a ‘NIGERIAN PRESIDENTIAL SYSTEM’. It is obvious that though there are imminent benefits of sticking to the American model of the presidential system, there is a need to model the same to suit our circumstance. The expensive nature of that project should make us have a rethink. For example, can we continue with having 109 Senators and 360 members of the House of Reps, majority of who do not even attend daily proceedings? Is it not possible that we have 1 Senator per State and 3 members representing each of the Senatorial Districts of the States? Should our Senators not run on part-time and save us scarce resources at this time?
c. IMPROVED ELECTORAL STRUCTURE: This should include and address the appointment of INEC officials, its funding, independence and most importantly, the deployment of technology in accreditation and voting and diaspora voting. Nigeria should be able to leverage on the BVN model for voting, especially for the elite. INEC officials should be appointed from all the political parties, known men, women and youth groups, religious societies, civil societies and professional groups and they can among themselves elect the Chairman and other officers. In the recent election conducted in Ghana some days ago, prisoners were able to vote.
d. RAISING THE BAR FOR ELECTIVE OFFICE: As it stands today and in this 21st century, all that is needed to be President or Governor in Nigeria, by virtue of Section 131 (d) of the 1999 Constitution as amended, is a School Certificate and that means a primary school leaving Certificate. In the bizarre definition imposed by the military, the equivalent of the school certificate can still be an illiterate or anyone that INEC certifies as literate. This is appalling and there is a need to include in the people’s Constitution a minimum requirement of a University Degree, with a minimum diploma in law or political science. This is to equip the leader with the requisite intellect to manage a modern society such as ours. Besides, while it is commendable that the “Not too Young to Run Bill” was passed, it is recommended that a “Too Old to Run Bill” be enacted, so that our elderly statesmen are allowed to enjoy their retirement and well-deserved rest, providing deep counsel where necessary. In most sectors of Nigeria, the retirement age is between 65-70 years. This is understandably so as scientists teach that the capacity of the human brain at that age begins to wane naturally. A country like Nigeria that is in dire need of technological inventions, deserves to have young technocrats between the ages of 40-65 years to be President and Governors. In the same vein, retired military officers should enjoy their retirement in peace, as the nuances of the military and democracy are different and poles apart, as such the former would ordinarily export dictatorship to the democratic space.
e. ESTABLISHMENT OF A TRULY INDEPENDENT JUDICIARY
In this regard, it is a judiciary which draws its funding from the first line charge, a judiciary that is well remunerated, with capacity to attract the brightest minds in the legal profession, a judiciary whose process of appointment is competitive and extremely transparent, a fearless judiciary that can hold the other arms of government to account and a judiciary that truly delivers justice to the people, in a fast and an efficient manner.
f. THE PEOPLES CONSTITUTION MUST PROMOTE A VIBRANT CITIZENRY
The laws themselves do not have mouths, hands and legs to walk the talk. Their enforcement for the common good requires human agents. Now, a docile citizenry is one that watches while state actors or politicians continue to flout the laws of the land and do nothing. Now ask yourself: am I a docile citizen? What have I done or I am doing to speak out against injustice in the land? In this regard, peaceful protest as a means of calling on the government to address issues of concern must be encouraged. Security must be provided to protesters to prevent hijack by enemies of democracy.
g. SAFEGUARD OF THE FUNDAMENTAL RIGHTS OF CITIZENS
The United Nations General Assembly High-level Meeting on the Rule of Law, held on September 24, 2010 declared thus:
“Human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations” Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.”
The above declaration captures the essence of protecting the fundamental rights of citizens in a democracy. Thankfully, the Nigerian Constitution has also attached the needed importance to the same, with its devotion of a whole chapter (IV) for this purpose. This is an important function of law in a democratic society. For in the absence of law, society slides to the Hobessian state where might is right and where life is nasty, short and brutish, in the words of the English philosopher Thomas Hobbes. The people’s Constitution must progress to punish individuals who abuse the rights of citizens with State powers through stiffer sanctions, especially those who have the powers to direct or stop such abuses.
h. STRONG INSTITUTIONS
The peoples’ Constitution must build enduring and strong institutions that will not make it difficult, for even the devil, if elected as President or Governor, to manage the common patrimony.
In concluding this discourse, it is important to reiterate the fact that the “rule of law and rule by law’ are the driving forces that sustain the enthronement of justice in any democracy. Where there is a negation from the virtue of the rule of law, it is a catalyst for the erosion of democracy. Consequently, it is safe to say that there is no democracy without law. In fact, law is the midwife of democracy. Permit me to end with the admonitions of CHARLES E. CLARK in his article titled ‘The Function of Law in a Democratic Society’ published in the University of Chicago Law Review thus:
“If the people are not in command of their own government, but are actually subordinate to some yet more remote sovereign who upholds and justifies unsanitary conditions, poor housing, long hours of labor, and general defiance of social welfare legislation as a freedom required by some vague constitutional command or higher law of nature, then we are nearer either anarchy or the rule of the autocratic few than we are democracy.”
Thus, justice will only flourish where the laws of the land rule over personal idiosyncrasies and where democratic tenets are religiously observed to the letter.
Adegboruwa, SAN, is a Lagos-based human rights lawyer.