By Mike Ozekhome, SAN

Last week, I commenced my discourse on this vexed issue of Prof Yadudu’s poor treatise on a new Constitution. Prof. Yadudu’s memo upturned history on its head and attempted to scare the NASS from working towards a new peoples’ Constitution. Today, I will further reveal why the NASS should maximally reject and ignore Yadudu’s incoherent thesis.

SOME MORE QUESTIONS FOR YADUDU (Continues)

If I may ask, who appointed, elected or sponsored Yadudu to represent the North West geopolitical zone State as a Confab delegate? How did he get there? Who was he representing? On what terms was he representing his zone? If he did not believe in the Conference, its representation and the likely usefulness of its outcome, why did he not do what honourable men normally do in such circumstances by simply declining participation? How can he approbate and reprobate? How can he blow hot and cold simultaneously? Yadudu must be reminded of the doctrine of collective Responsibility. If he disagreed, he should have resigned. He also did not write a minority report as late cerebral Rights Activist Ronto Douglas, did at 2005 National Political Reform Conference.

Yadudu not only participated fully, but actually presided over the delegates and recommendations of our Committee (Law, Judiciary, Human Rights and Legal Reforms). Plenary bought into these decisions and based its final recommendations on same. Yadudu does not therefore have the moral, ethical, legal or any other known right howsoever, to publicly denounce and repudiate, through his submission before the Constitutional Review Committee, recommendations he personally facilitated and also helped to author. It is grossly immoral to do so. Having said so, let me now tackle him headlong, on some of his fallacious postulations which he adorns with the fake garment of constitutional validity, lest the Constitutional Review Committee gets hoodwinked and misled. I will not bother myself about the issue of State Police and Community Policing as I believe every Nigerian knows my over four decades of crusading for same.

ON LOCAL GOVERNMENT COUNCILS (LGCs)

Prof Yadudu in his memo strongly opposed the deletion of LGCs from the Constitution. Why will he not? He knows that section 162(5), (6), (7), and (8) of the 1999 Constitution partly predicate Nigeria’s distributable account (revenue and income) on the number of LGCs in Nigeria. Yadudu fights to retain the unweildy 774 LGCs under section 3(6) of the Constitution, rather than allow Nigeria to be a two-tier system of government, with the states empowered to merge or create LGCs according to their needs and financial capacity. Do you know why? I will tell you. Kano State, part of the North West geopolitical zone he represented at the 2014 Confab (a Confab he now surprisingly demonises), has a whopping 44 LGCs.

Jigawa State which was excised from Kano State has 27 LGCs. So, as between Jigawa and Kano State (old Kano State), there are 71 LGCs. This State, while in the old Northern Region (up to January 15, 1966) produced, consumed and sold its famous Kano groundnut pyramids, cotton, hides and skin, according to her needs. Regions at that time paid 30% royalty to the Federal Government under section 140 of the 1963 Republican Constitution for minerals, mining, rents, mineral oils, or other resources extracted from the soil of each region. Such payments by the Federalion to regions were charged on the consolidated Revenue Fund. Nigeria at that time practised true fiscal federalism thus, enabling regions own their resources and pay tax to the Federal Government. Meanwhile, the said distributable revenue (sharing formula under the 1999 Unitary Constitution is now based partly on these 71 LGCs from only one state. Yet, Kano and Jigawa do not afford Nigerians any revenue to share. They do not care to know how the National cake is baked, they only share from it. This is the kind of federation Yadudu glamourizes!.

Compare and contrast this with Bayelsa State. Poor Bayelsa, one of the few states from which our monolith product (oil and gas) is derived has only 8 LGCs. Since oil was discovered in 1956, at Oloibiri (in the present day Bayelsa), the state has been held down by more powerful states whose indigenes (like a rampaging Army of conquest) beat their chest arrogantly to proclaim superiority and a divinely-ordained mandate of expansionism and irredentism. So, while Bayelsa with 8 LGCs takes pittance revenue from the oil she produces, non-product Kano and Jigawa States smile to the banks with lion share. Thus, Bayelsa suffers and wallows in self-pity. I cannot remember Kano groundnuts, cotton, hides and skin being shipped through pipelines or trailers to the Niger Delta Region to enhance one Nation. Or, can you?

Yadudu does not mind an inequitable perpetuation of this skewed, roguish and extornist system because it benefits him and his people. He does not approve of a new Constitution that will bring about true fiscal federalism, devolution of powers, egalitarianism, social justice, equity and fair play.

So, Prof Yadudu cannot see anything wrong in a lop-sided unitary system of government where the geese that lay the golden eggs (Southern States) have 357 LGCs, 60 LGCs less than the 417 LGCs of the consumers of the already baked National cake (the Northern States)? Yadudu is not bothered by this sort of master-servant, relationship which a brand new Constitution desires to address. NASS, please, do not listen to his unpatriotic rhetoric. The NASS Constitution Review Committee should outrightly reject Yadudu’s half-baked postulations, discard with the behemoth LGCs system in the Constitution through wholesome amendment.

MY OWN RECOMMENDATIONS ON A NEW FEDERAL STRUCTURE

1. To properly restructure, we need a fresh people’s Constitution anchored on a six-zonal federal structure; with the present states, still retained as federating units, thus, having a two-tier system of Government.LGCs shall not be federating units. While retaining section 7 which guarantees a system of democratically elected LGCs, sections 3 (6) and 162 (4) – (8) of the Constitution should be amended to scrap the State Joint LG Account and allow each state freedom to merge and collapse existing LGCs or create fresh LGCs, through State Assemblies legislative action, depending on its peculiar needs and financial capacity. Such LGCs shall be made fully autonomousand not dependent on State Governors. Their funding from a percentage of the allocations due to them from their internally generated revenue (IGR) shall be expressly guaranteed by the Constitution and placed on a first line charge; with LGCs observing strict accountability.
2. States shall have their court hierarchy up to the Supreme Court; with regional Supreme Courts at the six zones akin to the Western Region Court of Appeal.
3. There shall be full resource control, with states paying 30% of their revenue to the central government as was the case up to military coup of January 15, 1966.
4. There shall be state Police and community policing.

STEPS ON HOW TO PROMULGATE A NEW PEOPLE’S CONSTITUTION FOR NIGERIANS

Let me now give a blow-by-blow account on the making of a new Constitution and involving the Nigerian people through a Referendum.

1. Section 14(2) of the 1999 Constitution provides that sovereignty belongs to the Nigerian people. The present NASS, to abate their fears of being sidelined and rendered irrelevant, shall be involved in facilitating the process of the emergence of a brand new Constitution and a referendum on same from its present constitutional review exercise.
2. It is true that the NASS can amend the existing fundamentally flawed 1999 Constitution as envisaged in section 9 which provides for the mode of altering provisions of the Constitution. But, the fundamental challenge here which Yadudu appears oblivious of is that the NASS will only be futility employing section 9 to amend an inherently illegal, irredeemably incurable and illegitimate militarily-imposed unitary document which masquerades as the present 1999 Constitution. This is because the present Constitution (being merely a Schedule attached to a Military Decree No. 24 of 1999), is not owned by the Nigerian people. Yadudu may not want to hear about this, but this is the truth. The 1999 Constitution is illegitimate and thus lacks autochthony, credibility and acceptability of the people. Consequently, no amount of amendment of this illegitimate document of dubious pedigree through the present exercise can cure it of its “original sin” of illegitimacy; in the same way that you cannot put something upon nothing and expect it to say.
3. To create a more viable politically and economically functional country imbued with social justice, equity, unity, mutual respect, egalitarianism and prosperity, the NASS surely has the power to ignite and facilitate the process of having a brand new Constitution that is owned by the people with a specific provision for popular referendum by the people in the present constitution. How does the NASS do this? Quite simple, the NASS which is already in place shall resort to section 4 of the Constitution to enact a law that creates a Constituent Assembly of the people. Section 4 gives the NASS Assembly power to make laws for the peace, order and good governance of Nigeria. Enacting an Act to facilitate the process of having a Constituent Assembly that will midwife a new Constitution after a referendum is such a Law that will remove the present imbalances and disaffection in the Nigerian union.
4. It is this Constituent Assembly thus provided for by an Act of the NASS using section 4 of the Constitution that will debate the collated recommendations of the present Constitutional Review exercise, some acceptable 2014 National Confab lofty recommendations and some relevant provisions of the 1963 Constitution.
5. This enactment shall also make provisions for a referendum of the people. What the NASS therefore does is to simply ignite and popularize the entire process of bringing about a Constituent Assembly which will midwife a draft new Constitution and subject it to a referendum of the Nigerian people.
6. Provisions of a new draft Constitution shall be voted on by Nigerians in the form of “AYES” or “NAYS” during a popular referendum. It thus becomes the outcome of the will of the people. The matters to be voted upon, the questions, to be put, the mode of participation and the template of or entire referendum shall be matters of detail that are provided for in the NASS enacted Law.
7. With this credible, transparent and legal process, the new emergent draft Constitution becomes autochthonous, indigenous, legitimate, credible and owned by the people.

8. All these can be done within a space of a mere six months.
9. The President thereafter PROCLAMS it into Law, the emergent New Constitution, using his executive powers under section 5 of the 1999 Constitution. (To be continued).

AND THIS

CRACK YOUR RIBS

Them rush native doctor go hospital today…. this life no balance at all…..

THOUGHT FOR THE WEEK

“We may brave human laws, but we cannot resist natural ones.” (Jules Verne).

LAST LINE

Fellow Nigerians, synergise with me every week, to put our heads together on how to retool and re-engineer the fabric of Nigeria. Right here on “The Nigerian Project”.

*Chief Ozekhome, SAN, OFR, FCIArb, LL.M, Ph. D, LL.D, is human rights Activist and lives in Abuja.