Constitution Amendment And The Changing Meaning Of Democracy

By

Omo Isokpan

omo_pan@yahoo.co.uk

 

 

All over the world, both in established democracies and in transitional democracies like ours, the constitution remains the groundnorm, which guides social and governmental relations.  And because social relations is dynamic, often evolving in a way that never ceases to amaze people, it has become necessary to always review its twists and turns to ensure that emerging challenges are addressed.

 

Therefore, initiatives aimed at reviewing and strengthening the instrument and machineries of governance and invariably social organisation, in order to address hitherto unforeseen challenges, should be commended irrespective of the timing of such initiatives.  After all, this explains why constitutions have amendment clauses and it is the amendment provisions that provide the legal basis for addressing the inadequacies in constitutions. 

 

In our own case, the 1999 constitution is particularly flawed and all of us are witnesses to the challenges which the deficiencies in the Constitution have thrown up since 1999. Indeed, the 1999 Constitution, with its avalanche of paradoxes and lacunae, is a perfect metaphor of the havoc which our experience with authoritarian military regimes has wrecked on our psyche.

 

 As our nation prepares to transit from one civilian rule to another, it is germane, important and urgent for us to rework the basic law guiding our relationship with each other as well as relations among tiers and agencies of government. In this particular exercise, 118 issues were proposed for amendment and these issues run the entire gamut of what the 1999 constitution supposedly address, albeit improperly, and other ancillary matters.

 

For instance, in the course of our evolution as a nation, one issue which has caused so many problems and seemingly intractable is citizenship and indigeneship. Many have died as a result of the crises that have arisen on account of dispute over indigeneship, or what some people call land owners and settlers.

 

The constitution is also awash with contradictions with respect to the provisions on the administration of justice especially where the pathways of law and those of politics have intersected. This has also thrown up daunting challenges. Even the implementation of the provisions on revenue derivation and allocation, as well as what constitutes appropriate emolument for government officials, were marked by controversies and litigation.

 

The foregoing are among the items constituting the central focus of the current review of the 1999 Constitution. The proposed review also includes issues such as the duties of citizens to defend democratic institutions as well as the teaching of the ideals of the constitution in schools in order to nudge the psyche of younger people to the beauty of democratic principles. What about the extent of the power of State legislatures? No one will contest the fact that this particular issue has caused many states to seek judicial interpretation of certain clauses in the constitution. Many States, indeed, have taken the Federal Government to court accusing the Federal government of overbearing influence.

 

As I write, some officials of the Federal Government are still being castigated by some officials of Kano State Government and Abia State Government, over the ban of the Hisbah Corps and Abia Vigilante, which activities contravene section 214 of the 1999 Constitution. The Kano State government is already in court over this matter. So, does anyone still feel it is inappropriate to have a constitution which clearly defines the geography of powers of various tiers of government?

 

How can anyone who claims to be a democrat and yet contest the appropriateness of reviewing a Federal constitution which has 98 items, 66 of which are on the exclusive legislative list?  Must we allow all these contradictions to continue to be hiccups to democratic consolidation which this administration is determined to achieve? Why must we refuse to examine 117 issues which have caused painful challenges to our democracy because of one item which borders on tenure of office?

 

Curiously, here is a leader (President Obasanjo) who in spite of the phenomenal achievements recorded by his administration, never said he will run for a third term. But the media yielded to the temptation of being used by mischief makers who have orchestrated the most malicious and calumnious campaign against the President, alleging that the President is interested in a third term. Some commentators who tend to see nothing good in this government, even alleged that the review of the Constitution “is being geared towards third term, but the actual scheming is for life presidency”.

 

But we know that the ambition of this people is to rubbish the gains of this government and stifle the consummation of the great programmes undertaken by this administration and, in its stead impose a social order which will return Nigeria to the dark days. They want to halt the trajectory of growth and the remaking of our nation which this government has commenced. But we reject this contrivance in its entirely. We reject this attempt to hold the Nigerian people in backward conditions.  We reject all attempts by groups, wherever they are located, to create a situation which placed them in a position to continue the predation of our collective patrimony.

 

But my grouse, really, is with the nature of representation which the media gave to the public hearings on the review of the 1999 constitution. The public hearing which held in all the zones as slated was well-attended, we saw it on the television and heard on the radio. Nigerians of all persuasions, including those who liked to be seen as incurable opponents of this administration attended the forums and stated their positions. No one was molested and no one who presented himself or herself with decency and decorum was prevented from articulating his or her views, even where such views are diametrically opposed to the popular view.

 

Indeed, presentations were made on all issues proposed for review, not just on item 49 which is about tenure of office of the President.  Yet most press houses came up with titles like “Nigerians reject third term”. This is not only offensive, it is unethical and objectionable. Never in the history of our country had a section of the media succumbed to the agents of destabilization, to the consternation of those who attended the events and to the chagrin of members of the international community who observed the fora.

 

Before our eyes, the robustness of the Nigerian press, its vibrancy and democratic fervour, is being replaced by the promotion of divisiveness and the glamorisation of centrifugal forces, in spite of the clear danger to our collective well-being and to national security. By this antic, a section of the press in Nigeria has redefined democracy. To them it is no longer a process, not any more about reason, not even the promotion of a culture of debate.  These few people feel they control the open market place of ideas and they want the rest of us – who are in the majority to accept this as a Hobson’s choice – what a tyranny of intelligibility. A tyranny which has once again confirmed the scholarly view of Inoguchi, Newman and Keane (1998) that democracy is widely advocated and sought, but its meaning is widely contested. 

 

But as this contest for the soul of the nation deepens, we will not waver neither would we be weary, for we know that ultimately, the contest will be won not by blackmail, not by mischief, not by clannishness nor atavism, not even by terrorism and nihilism but by reason and good faith.

 

 

Omo Isokpan, Department of Political Science, University of Nigeria, Nsukka

 

 

 

 

 

HISBAH GUARDS AND THE REST OF US

 

Omo Isokpan

 

Quite dispassionately, it beats my humble imagination that a state government in a fully participatory democracy can be so insensitive and organically obsessed with an odious passion driven by an terrible ambition and thereby indulge in flagrant abuse of the constitution.

 

But thank God the chimera child of this infamous, unconstitutional illegal and anti-social action has been proscribed. And there we are, so much live and cry following the proscription of the Kano Hisbah guards.  The Kano state government who is the creator and operator of the outfit together with other protagonists of Hisbah have blatantly realised to see anything wrong in the creation of Hisbah Guards or the way and manner these guards went about harassing and molesting innocent citizens.  Quite, number of traders will easily admit that his/her wares are low in quality.  But in matters of leadership, we are expected to be far above board, upright and displaying the highest possible level of moral rectitude, which the Kano state government functionaries at the centre of this Hisbah Guards issue have failed to display.

 

One begins to wonder if deviousness is the hallmark of politics in Nigeria, considering the brazen misrepresentation of the reality surrounding the establishment and indiscrete operation of the Hisbah by the Kano state government as well as its agents.

 

The truth of the matter is – everything is wrong with the Hisbah Guards, from its thwarted conception, its unconstitutional creation and absolutely uncivilised mode of operation. Kano state government would want us to believe that the Hisbah corps or commend as they may wish to call is not a parallel police force nor is it a security outfit.  But it admits this much that the Hisbah guard is a para-security outfit with no mandate to arrest, prosecute or detain offenders.

 

But in practice, these activities constitute the core areas of the joy today operation of the Hisban Guards, which torment innocent citizens in Kano, women and Achaba riders – who have been arrested and taken to mobile courts where they are expected to pay five thousand Naira or forfeit their motorcycles.

 

They claim the Hisbah guards is to help promote observance of sharia, peace, law and order in the state and the same Hisbah guards violently break into peoples houses to forcefully disperse innocent citizens celebrating a particular case is that of a marriage at Hoforo where Hisbah guards broke into a house to forcefully disperse women who were peacefully celebrating a marriage.

 

Everyone knows that we need more men and women in the Nigeria police, we all appreciate the fact that more hands in the area of traffic control should be of immense help, particularly in densely populated cities like Kano.  But to begin to claim a body was established for one thing and in operation they are doing other things that clearly infringes at the fundamental rights of citizens is totally unacceptable.  There are several areas where the creation and operation of the Hisbah guards can be easily faulted.  Nobody is saying Kano state government cannot introduce sharia in the state, but to purport to want to establish a law enforcing (security) outfit to ensure compliance with sharia law will be contravening provisions of the Nigerian constitution.

 

Formation and operation the Kano state Hisbah Guards clearly contravenes provisions of the Nigerian Constitution in many respects.

 

(1)      it contravenes section 214, subsection 1 which reads interalia “There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the federation or any part thereof  (Emphasis mine).

 

(2)      It contravenes clearly in its modus operation though obviously not within its mandate, in flagrant abuse of several fundamental rights of innocent citizens living in the state.  (a)  Operations of the Hisbah Guards in Assaulting, and torturing innocent women and Achaba riders constitute abuse to the fundamental right of these citizens to Dignity of Human person, as provided for in section 34, subsection 1(a) which reads:  Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or to inhuman or degrading treatment.

 

(b)      The modus operandi of the Hisbah guards obviously contravenes the rights of innocent Kano residents to personal liberty.

 

(c)      The modus operandi of the proscribed Hisbah guards contravenes the right of innocent citizens to peaceful assembly and association.  And clearly.

 

(d)      It contravenes the fundamental rights of Nigerian citizens resident in Kano state, particularly the freedom from discrimination.

 

With all these points of contravention of the Nigerian Constitution resulting due to the formation and modus operandi of the Hisbah guards, it remains clear that establishment and operation of the known proscribed security outfit by Kano state government is unconstitutional and illegal.

 

The concern raised that about nine thousand unemployed youths absorbed into the Hisbah command would become jobless once again sounds plausible.   Our genuine concern is that as many as possible Nigerian youths should be employees.  But, Kano state government can if seriously interested and determined create, generate and provide an enabling environment for gainful employment of these young Nigerians.  Service in a questionable security outfit is not the only form of employment opportunity that can be created for these youths.

 

Quite frankly, the confusion or is it deviousness of the Kano state government in this regard and that of the protagonists of Hisbah guards is imminent.  Once sincerely expects state administrators and highly placed political leaders to be honestly able to distinguish between:

 

(1)      Establishment of sharia to be part of the legal system in the state.

 

(2)      The means and modus operandi of sharia legal system, and

 

(3)      Methodology of enforcing compliance with tenets and provisions of sharia law.

 

From all that has happened so far, very painfully though, it is apparent the Kano state government, its functionaries and protagonists of Hisbah cannot differentiate between these three distinct matters or have blindly refused to understand and honestly appreciate the clear differences.

 

Quite dispassionately, it beats my imagination that a state government in a fully participatory democracy can be so insensitive and organically obsessed with an odious passion driven by an ulterior motivated ambition, as to pass wickedness into law.

 

No one is saying that introduction sharia in the state is illegal or unconstitutional. Though the practice of the legal system generated so much concern and anxiety both within and outside the country at its advent, it is clear that sharia can only apply to Muslims with respect to matters regarding personal Islamic laws on the violation of such individuals. This means that a Muslim even in a state where the shaira legal code is operational can choose not be taking his/her matter to a sharia court.  No one can be forced by any extra legal or unconstitutional means to abide by the tents of sharia. Kano state government should know that the Nigerian Constitution is supreme over any law made by a State Assembly, and any such law to the extent that it contradicts provisions of the constitution remains void.

 

The confusion of the creators of the Hisbah guards is so great.  Their utter disregard or is it ignorance of the provisions of the constitution is extremely regrettable.  The pain, anger, fracas and infringements on the rights of innocent citizens due to their action remains infamous.  The flagrant disregard for the rights of non-muslims residents in Kano state can not be overstated.  The obvious threat to national peace, unity, security and harmony in their action cannot be down played.

 

Clearly, creation of the Hisbah guard and its modus operandi constituted a great threat to national security, unity, peace and harmony. The decisiveness and nationalist action of the Federal Government in asserting supremacy at the Nigerian Constitution should be commended.

 

 

Omo Isokpan, Department of Political Science, University of Nigeria, Nsukka

Reflections on the Hostage Crisis

 

Omo Isokpan

 

As the Media and Corporate Affairs Manager of an oil company, one of my duties is to conduct daily newspaper reviews. It is a process that can be laborious and painstaking. It involves scanning through all available media both local and foreign. Those newspapers that I do not have access to physically, especially the foreign ones, I check online. Hence it was while I was performing this duty on Thursday March 2, 2006, that I came across the news that six of the nine hostages kidnapped by our increasingly restive, militant, Egbesu worshipping, Ijaw warriors, 10 days ago, had been released.

 

I was especially happy for two reasons. First, brains had triumphed over brawn, diplomacy had succeeded where bombs, bullets and missiles had failed, and it was achieved without bloodshed and payment of ransom. I was also glad because I thought that this would bring some relief to this nation that has been through a lot in recent days. Such include the bird flu incidents in certain states of the federation and the wanton destruction of life and property in the Niger Delta. There was also the  communal clashes and reprisal attacks over cartoons in a print medium that most ‘mujahhideen’ and ‘crusaders’ probably never saw or read, published in a country most of those fighting have never been to, and by someone they don’t even know.

 

Meanwhile, the hostages’ release was and still is a welcome relief. My joy was however to be short-lived when I checked the foreign media to see their own perception of the incident. I got a very rude awakening. None of them bothered to give the story the prominence it deserves. Some did not even give it any coverage. For example, the opening page of the website of The New York Times, said to be the largest selling newspaper, said nothing about the release of the hostages which included an American. A search using the word ’Nigeria’ revealed a story in which the incident was mentioned. But it was limited to three lines, while there were no photographs of the released hostages. Rather, the thrust of the story was the rise of oil prices due to certain problems.

 

The Washington Post was just as biased. It mentioned precious little, and the story was done with a picture of the American hostage while in captivity and surrounded by his captors. Another absurdity in this regard in my view is the American cable television company, CNN. As if it was not bad enough that the story received little prominence, the manner it was written painted the picture that the government was solely responsible for his kidnap. I agree that the Niger Delta is the main source of revenue in Nigeria. I also agree that the region has been marginalized in the past. I surely agree that they, as anyone else, have the right to seek redress for all perceived and actual wrongs, but such redress must be done in a lawful manner. No group, no matter how endowed and irrespective of the region they represent or the cause they fight or claim to be fighting for (be it MASSOB, OPC, Bakassi Boys, NDPVF, and lately MEND), have the right to subvert the laws of the land. Two wrongs have never and would never make a right. CNN’s headline for the story was “Released hostage expresses empathy toward kidnappers”. In other words, he supports (although indirectly) their actions.

I believe that this is both unfair and unethical. As a Nigerian and also a journalist, I am aggrieved because of the manner the stories were written by the foreign media. The BBC said very little about the hostages being released but rather gave so much coverage to an issue that is being addressed - the outbreak of the Avian Flu. I also checked some foreign newspapers - Daily Telegraph and Mirror but none of them did any spectacular story on the release of the hostages, while some did none at all.

 

Is this a conspiracy or what? How come any good thing about Nigeria is blacked out by the foreign media while so much prominence is being given to flashpoints? I disagree with the maxim which says bad news is good news and should get more reportage than good news. Or how else can one explain the fact that when there is good news about other countries, it is not only given coverage but prominence. This scenario throws a challenge and we must pick up the gauntlet by letting the world know that we have made tremendous progress and are still making efforts to solve other problems confronting us.

 

Here I think the hostages' release is something worth celebrating.  We are succeeding in areas where others have failed. Take a look at Iraq. All the efforts of the Americans and their allies have failed in bringing peace. The intervention in Chechnya is marked by the same scenario - the Russians with all their might have failed. It took Britain 30 years and lots of outside help to solve the Northern Ireland problem. But for our intervention the situation in Liberia, Sao Tome and Principe, Gambia, Sierra Leone, Togo, Congo DR and Guinea Bissau, would have been terrible. There is the need for a better articulation and dissemination of positive events in the country. The current manner it is being done leaves much to be desired. You do not expect civil servants, with all the attendant bureaucracy in the civil service to be able to match the foreign media that are more dynamic, better funded and often report Nigerian issues with a prejudicial lenses. It is great to see that the Minister of Information and National Orientation has done (and still doing) a lot to showcase the remarkable progress Nigeria has made in the past six years. By so doing, he has done well to stop this vicious and conspiratorial attempt to return Nigeria to the dark days.

 

Before the six hostages were released, there was a rumour that the federal government was considering sending troops to forcefully free the hostages. But the government’s latter option for a policy of containment and diplomacy is prevailing. This, as I have said before, deserves commendation and our foreign friends ought to do so especially because had the government tried to use force, and failed, they would have been the first to condemn the approach. There is a saying where I come from that if you keep telling a child that he is a thief, he or she would soon believe it, and would ultimately begin to behave that way. So, the Western world should realize that those involved in the recent acts of kidnappings and sabotage will continue to behave as portrayed – criminals and terrorists fighting a just cause, what a contradiction!

 

I just hope that things would begin to change for the better because ultimately, we all will be the losers. The government is losing a lot of revenue, the communities would suffer because money that would have been spent on community development would now be spent on repairing damaged pipelines and flow stations, and the nation is losing so much as the power being generated by the Power Holding Company of Nigeria (PHCN) is already being affected. The western world is also a loser in the present scenario as it is their citizens that mostly fall victim to the kidnappers. A word is enough for the wise. Let us join hands together to solve this problem instead of trying to undermine government’s efforts through improper means.

 

 

Department of Political Science, University of Nigeria, Nsukka