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Constitution Amendment Debate: Lesson from United States By Emman Ozoemena
Preamble: For some time now, the nation’s political environment has been hyperactive or what some dubbed by many as “heating up the system”. There is doubt that the current heat in is the resultant effect of the on-going process of amendment of 1999 Constitution by the federal legislators. It is instructive to note that just about same time a year ago, the nation were enmeshed with the National Political Reform Conference process initiated by the executive arm; today nobody is talking about the report of the NPRC.
With the commencement of debate in the National Assembly on the general principles of the Bill seeking to amend the 1999 constitution under way the process has assumed a new dimension. Key political actors at federal and state level as usual are all deeply involved in series of political activities surrounding the amendment process. The debate in the National Assembly is expected to followed by clause by clause voting procedure by the legislators, depending on the outcome at this first stage and it is would be replicated in the chambers of 36 States’ Houses of Assembly.
In simple term, the battle that lies ahead provides an interesting scenario in the effort to transit from one civil administration to another. But then the major source of worry is that some of our elected legislators behave as if they are not sure of why they were elected in the first instance. Their carriage and mien belies the high hope and expectations of Nigerian people, which prompted the election into the parliament. Except for some principled and consistent legislators our collective trust in the system would have been betrayed. It seems as if only a few of them understand enormity of responsibilities their position as confers on them in deciding the fate of Nigeria. I would confess that based on public utterances of some legislators, it may not be out of place to express doubt, if they understood at all the raison de’tre for member of the legislature.
First, it is pertinent to note that decisions taken today by the legislators would impact either negatively or positively on millions of Nigerian citizens, which by logic of extension include the legislators, their families and all Nigerians. I am not aware of anyone who is exempted from its impact. One fact about public policy is that action or inaction by policy makers always comes back in later years either to enhance or wreck lives including those who took the decision(s). Volumes of memoir and historiography texts that adorn bookshelves across the world attest to veracity of this assertion.
Initial Attempt at Constitutional Review: At the beginning of current democratic dispensation Nigerians agreed that the 1999 constitution was flawed in several ways. The legislature was not left in this debate. In fact the first major attempt at addressing it on the floor of House of Representatives was on July 13, 1999 when four members of the House led by Dr. Jerry Ugokwe, then representing Idemili federal constituency of Anambra state moved a motion seeking for adoption of the 1999 Constitution as “Transitional Constitution”. Supporters of the motion had argued inter alia; “In view of the fact that the 1999 Constitution of the Federal Republic of Nigeria was signed into law by a military regime; considering that some pertinent issues which formed the basis of the said 1999 Constitution were deleted before its promulgation”
The newly inaugurated House expectedly resolved that the motion was out of order subsequently; it was thrown out on basis of what many of them argued as “not deserve merit for legislative discussion”. It is important if we would recall that this took place barely two months after the inauguration of National Assembly and the 18th sitting of the House of Representatives of the Fourth Assembly of Federal of Nigeria. Nothing was heard on the matter not until May 23, 2000, when the National Assembly, precisely House of Representatives passed a resolution to set up a joint committee to review the 1999 Constitution along with Senate after a joint session and the said motion was moved by Hon. Mohammed Wakil, the then House leader.
It was this process that brought the Joint National Assembly Constitution Review Committee (JCRC) came into being in some time in September 2000. The activities of the committee suffered a lot given the 2003 elections, which occupied the attention of the nation’s political class. With the election life span of that assembly came to an end. It is equally important to note that Nigerians initially were no doubt elated by the constitution review process, though the major complain was its slow pace of work. Information on their activities was very scanty, except in a few cases. Similar Presidential Review Committee on 1999 was set up by the executive and headed by Ambassador Yusuf Mamman and Mr. Clement Ebiri at different time. The committed submitted its report one year after inauguration with public hearing and other activities to make the process an all-inclusive exercise, while the National Assembly Joint Review Committee never concluded work.
The end of the First Assembly of the Fourth Republic on June 2003 meant that legally all pending bills and motions before the National Assembly had elapsed, it would have to re-presented again before the Second Assembly to through the process of legislation. The JCRC and other standing committees in National Assembly were subsequently reconstituted. JCRC also had new members and leadership.
I have gone ahead to give this background information to acquaint us with some factors that may help us in understanding the psychology and metaphysics driving the current constitution review process. It is also important to engage the proponents and apostles of “tenure elongation” and understand why they never thought it necessary to embark on the review process in the run up to the 2003 general elections.
The assumption on why pre-2003 National Assembly were not “pushed” to ensure constitutional amendments ahead of elections may due to fact that the then leadership of Senate and House of Representatives namely, Chief Anyim Pius Anyim and Alhaji Ghali Umar Na’Abba as senate president and House speaker could not have easily been amenable to certain provisions in the amendment likely the tenure elongation, which common sense dictates could wait for another day in view of frosty relationship with the presidency.
Secondly, it may have been prompted by the fact that if the issue had arisen then, the usual pre-election struggles and politicking for space could swing the votes against its proponents; who may appear like power mongers to be avoided by Nigerians through the ballots. So the logical thing to do was simply to push the issue under the carpet till the end of the second term, when succession debate, a normally occurrence in democracy would dominate public affairs.
Most Nigerians may wonder why the Executive failed to make attempt towards engaging the National Assembly in 2001 to expedite action on the report of Clement Ebiri led Presidential Constitution Review Committee. The ruling PDP that today has taken on the task of speaking for Nigerians never took up that role with the Ebiri Committee report. May be it was not politically expedient to do so then, if you understand the philosophy of enlightened self interest.
Third Term Debate and the National Assembly: As a Nigerian, I have watched the unfolding melodrama on-going constitutional review process, honestly, my observation is that this once again has revealed that core ingredient of democracy is still lacking in the nation’s attempt at building institutional framework that drive change and development in any society. Secondly, it shows that in the last seven years, we failed to institutionalized democracy based on institutions and process, devoid of personality cult as well as exposing a political class bereft of ideas about how to move the country forward; even though they claim otherwise. Thirdly, it has also thrown up the reality, even though we had thought of it before now that we have a crop of legislature that either for interest other than public interest, decided to abandon their legislative duties on behalf of the masses that stood under the sun and in the rain to vote them into power.
In the last two of weeks, as an observer of Nigerian politics, I have taken time to follow carefully the current review process beginning from public hearings and debate in National Assembly to see whether as a people Nigerians have come of age politically, and if we could approach constitution review or making if you may under best practices. Again, I also wanted to see if the current efforts would be different from the previous experience in political engineering, which has dotted our political history. From public hearings held in six geopolitical zones, the Port Harcourt National Assembly constitution review retreat, and current debate on the floor of National Assembly provides comic relief. Frankly speaking, one is tempted to leave with the impression that either Nigerians as people plan for just today, no more, no less.
Sampler one, watch or listen or read the debate on tenure elongation that seeks to grant the president and governors three terms of four years in office, you will notice that the core of their logic rest on what they call “sustaining the tempo of the reform process in the Nigeria” is a trite logic, which we used years ago by most of the regimes ranging from Gen. Yakubu Gowon, Gen. Ibrahim Babangida, Gen. Sani Abacha respectively. So, it’s simply an old wine in new wine skin.
Secondly, going through the 118 provisions listed for amendment one gets the impression that the whole exercise is intended to ridicule the spirit and essence of constitutional amendment, a key exercise in strengthening democracy worldwide. From the number of items listed for amendment, two scenarios emerges; one the proponents of the constitutional review are making a brand new constitution to replace the present 1999 constitution. But against the backdrop of available time, how far can it thoroughly give attention to all the issues under review. Thirdly, the inclusion of so many items is to allow the proponents of tenure elongation or third term enough space to push it without necessarily attracting attention to their real motive. The logic is that it is very easy to hid third term under the cover of other serious issues that would have engaged the attention of Nigerians that demands review.
The expectations of many is that few items say 10 issues would have been tabled for amendment now, so that time could be devoted to it in assessing the merits and demerits. Constitutional review elsewhere have taken such pattern where interests groups, civil society groups and state actors hold consultations on key areas of review through people driven process because ultimately Constitution is for the citizens in a society. Any process that fails to meet the basic test is driven by ambition of the political class interested in grabbing power for sake of power. The current exercise clearly fits into this description, in content and character.
The expectation of any civilized mind is that say about ten items selected through rigorous procedure of legislative scrutiny would have been tackled in this first exercise by the National Assembly been that constitutional amendment is a regular function of the parliament, it can not end with the present assembly, if you read clearly the provisions of the 1999 Constitution. The proponents of third term agenda both in the National Assembly and the foot soldiers in the field creates an erroneous impression that it is not a one-off thing, hence the panicky and frenzied in the nation’s political arena.
United States and Constitutional Amendment: For instance, a ready example is the United States of America with a history of a democracy of 230 years have successfully accommodated 26 amendments to the US Constitution. Even though a total of over 6,900 proposals for amendments have been made, the United States and state’s Congress ratified 27 amendments. Constitutional amendment provision as envisioned by the framers of the constitution was to go through two-fold procedure of proposal and ratification to reflect the seriousness attached to the exercise in strengthening and deepening democracy.
The 1999 Constitution of Federal Republic of Nigeria clear took a clue from the US model going by the Federal structure of government, Presidential system of government and the amendment process respectively. Article V of the United States Constitution clearly states the procedure for amending the US Constitution as well as its ratification. It requires that the two-thirds votes of members of the Senate and House of Representatives, or by a convention called by Congress when two-thirds of the state legislatures request such an amendment; while an amendment can be ratified by three-fourths of the state legislatures or by conventions in three-fourth of the states.
And in case of Nigeria, Section 9, subsections 2 and 3, clearly outlines the procedure for amending any provision of the Constitution. It requires votes of two-third members of both houses of the National Assembly and approval by resolution of two-thirds of Houses of Assembly. My take on this is that the provision is to avoid situations in a our polity where voice vote option could be used just by Parliamentarians, propelled by promptings of a group of power brokers to change the provisions of the constitution to suit an individuals ambition to amass power. This safe guard should be used in assessing the so called arguments now prevalent in the current debate in the National Assembly where members just stand up and argue that my “constituents” have mandated me to tow so, so and so line of action. The truth is that these arguments are not known to be products of people driven consensus but rather a made up, self serving positions.
It would instructive to examine a key example how the United States Congress handled an amendment process over the years to see if there lessons we could learn from it. In 1791, twelve items were proposed for amendment by the Congress and but at the end of the day ten provisions were ratified by the legislatures of three-fourths state. These amendments known as Bill of Rights were to promote fundamental rights of citizens. It included provisions on freedom of religion, freedom of speech and the press, and freedom of assembly and right to protest actions of government, and right to bear arms among other critical issues bothering on strengthening the democratic ideal.
It is equally instructive to note that none of these items that passed amendments was of benefit to individual politicians as they are utilitarian in origin and character; not of immediate or future benefit to the political class, but hinged on the people and growth of democracy. In 1798, 1804, 1865, 1868, 1870, 1919, 1920,1951,1961,1964, 1967 and1971 and 1992 amendments focused on one issue each, while that of 1913, and 1933 focused on two issues each.
What comes out of this process is that constitutional amendment is never a one-off thing that must be carried out by just one particular Assembly. It has been said that the life span of a nation is not on the same plane with that of an individual in view of the fact that individuals come and go, but the nation remains. Reason would have detected to the legislators that they would not abide for ever; all they need do is simply do their bit and move ahead. So, the popular argument by pro-third term supporters on the need to retain the current team of reformers in government through tenure elongation by constitutional amendment is simply self-serving. A situation where the law is meant to favour or serve the interest of few individual in the power defeats the principle of justice and fairness. Law, it is expected should be made to promote general good for citizens and generations unborn; foster good governance and development.
It was rather funny watching some Nigerians on television during the last public hearing, making presentations on why the tenure of president and governors should be amended to accommodate third term of four years each and “benefits” thereof. These fellows obviously betray the impression of playing the scripts of some unseen individuals. I am sure that Nigerians could understand as the nation has been through this road before. The scenario is a reminder of circuit show mounted by magicians in the streets of our major townships in the 70s and 80s that labouriously try display their mastery of ‘magical powers’ in entertaining their gullible audience, who at times are forced to clap and shout at the “wonderful magician” known in the local parlance as “ American wonder”.
Illogicality of Third Term: Watching the debate in the National Assembly theses past weeks has brought out some key issue concerning our polity even as supporters of third agenda look for “logic” to justify the campaign and convince Nigerians on the seriousness of campaign for tenure elongation. From the output so far, pro-third term debate has failed to meet requirement of elementary logic in governance.
Asked why extend the tenure of the elected officials, to wit, the president and governors from two-term of four year to three terms of four years? Response; “It is the ‘wish’ of my people” and to consolidate the reform process of this administration.” But a further interrogation of the process through which arrived at the knowing the wish of ‘his people’, shows that the “his people” is just euphemism for “me, myself and I”. Members of his immediate family are even involved in this “my people” interpretation. What we need now is people’s sensitive legislator in the National Assembly and States’ Assembly that would gauge the flow of public opinion on issues; we may be able to deepen democracy.
My appeal is that there is need to be cautious in amending the constitution especially regarding tenure elongation, which to all intents and purposes is a soured soup that should not be served on Nigerians whom the legislators claim to represent, if they truly love us. We expect the National Assembly members to be aware that the nation’s democracy is about institution building and process, not necessarily about individual actor(s) who come and go after playing their part on the stage of national life.
The United States Congress provides an excellent guide to our law makers; at least 55 years ago, it resolved to reduced tenure of the President of United States after several years of running a of limitless tenure for the president. The verdict is that United States’ democracy is stronger and better today for it.
Selah! Think about Nigeria and her future, today!!
Emman Ozoemena P.O. Box 4000, Garki, Abuja.
Ozoemena, a public policy consultant lives in Abuja. He can reached on ozoemman@yahoo.ca
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