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Note: This document is from the archive of the Africa Policy E-Journal, published
by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action
from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived
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Nigeria: Constitution-Making
Nigeria: Constitution-Making
Date distributed (ymd): 981207
Document reposted by APIC
+++++++++++++++++++++Document Profile+++++++++++++++++++++
Region: West Africa
Issue Areas: +political/rights+
Summary Contents:
This posting contains a report from an expert group meeting on constitution-making
in Nigeria, convened by the Centre for Democracy and Development in London.
The report is preceded by a brief APIC note, with sources on other current
developments.
+++++++++++++++++end profile++++++++++++++++++++++++++++++
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Nigeria Update
Leaving Nigeria in early December after a working visit, UN Special
Rapporteur on Human Rights Soli Sorabjee noted that the human rights situation
in the country had improved under the current military regime, but that
much more remains to be done. Nigeria's elections to local councils on
Saturday, December 5, were the first stage of a transition process promised
to culminate next May with the instalment of a democratically-elected civilian
president.
In early poll results in the local elections, the People's Democratic
Party (PDP) has taken a lead in most parts of the country, except in the
south-west, the home area of its most prominent leader, former military
head of state General Olusegun Obasanjo. Other parties to do well are the
All-People's Party (APP) which won around a quarter of local governments
announced so far, and the Alliance for Democracy (AD) which was winning
in the south-west, including in Nigeria's biggest city, Lagos. The AD groups
most of the prodemocracy advocates who have chosen to participate in the
electoral process, although others have joined other political parties
or continue to campaign outside the party system for more fundamental reforms
in the political system.
For more news and commentary on current events, see
Africa News (http://www.africanews.org/west/nigeria)
Nigeria Web (http://odili.net/newswires.html)
Shell-Nigeria-Action listserv
(http://www.essential.org/listproc/shell-nigeria-action/)
And for more background and additional links see the Africa Policy Web
Site
(http://www.africapolicy.org/action/nigeria.htm).
Additional background discussion on constitution-making in Nigeria can
be found at the web site of the Association of Nigerian Scholars for Dialogue)
(
http://www.nigerianscholars.africanqueen.com)
INTERIM REPORT OF THE EXPERT GROUP MEETING
ON CONSTITUTIONMAKING IN NIGERIA
HELD IN LONDON ON NOVEMBER 16 & 17, 1998
For more information on this report, please contact
Sonny Onyegbula, Centre for Democracy & Development on +44 171 407
0772
or by email: sonyegbula@cdd.org.uk
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 prodemocracy 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:
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;
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;
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
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 multitrack 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:
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.
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.
A consideration for Gender Equality has become particularly urgent,
because society, by discriminating against women, was ultimately under-developing
its own foundation too;
The promotion of Independent Commissions with broad investigatory powers
and prosecutorial authority to promote accountability and transparency
in government;
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.
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.
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.
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 constitutionmaking
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.
November 20, 1998.
This material is being reposted for wider distribution by the Africa
Policy Information Center (APIC). APIC's primary objective is to widen
the policy debate in the United States around African issues and the U.S.
role in Africa, by concentrating on providing accessible policy-relevant
information and analysis usable by a wide range of groups and individuals.
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