Thursday, August 14, 2014

THE 2014 NATIONAL CONFERENCE 'DRAFT CONSTITUTION'

By James Pam
Delegates to the 2014 National Conference resumed plenary on Monday 11th August, 2014 for the purpose of adopting their compiled recommendations and resolutions. They had hoped that they would simply read through one neat document, cross the ‘t’s and dot the ‘i’s to ensure that the final compendium to be presented to Mr. President accurately captures their decisions. However, what they were confronted with was several documents which have generated such a controversy among them that the entire could be jettisoned after all.
Three documents were presented to delegates upon resumption. The first document is the Conference Report proper, which is in two volumes; Vol. 1 has about 500 pages and Vol. 2 has about 900 pages. The second document is a ‘matrix’, in the words of the Conference Secretary, Mrs. Gloria Azinge. As to be expected in a matrix, it has been prepared in three columns; the first column contains the current Nigerian 1999 Constitution provisions that affected by Conference decisions; the second column contains the constitutional amendments recommended by the Conference delegates, while the third and last column contains a fusion of conference recommendations and the 1999 Constitution.
In the absence of Conference Chairman and his deputy, Justice Idris Kutigi and Prof. Bolaji Akinyemi, respectively, Mrs. Azinge explained further by saying that in order to make the work of delegates easier, the Secretariat had gone ahead, extracted the third column of the second document, which is the fusion of the existing constitution and the amendments proposed by the delegates, and produced a another document titled, ‘Draft Constitution’. It is this third document and the liberty taken by the Conference Secretariat to produce it that is causing the hullabaloo and drawing flaks from some delegates.
Azinge was not finished yet. She added that the Secretariat had also produced the fourth document, a draft Bill, which Mr. President will use to introduce the amendments and alterations to the National Assembly, which could eventually lead to the Fourth Amendment to the Nigerian Constitution.
The ‘Draft Constitution’ immediately drew the ire of some delegates, especially those from some parts of defunct Northern Region. On the NTA Good Morning program today, 13th August, 2014, Prof. Auwalu Yadudu and Malan Tanko Yakassai told anchor persons, Kingsley Osadolor and Claire Adelabu, and all Nigerians that: (1) The Conference does not have Mr. President’s mandate to produce a Draft Constitution: (2) Such a Draft Constitution has no legal basis because the National Conference is not tantamount to a Constitutional Conference: (3) Delegates would be overstepping their bounds if they prepared a Draft Constitution: (4) The 1999 Constitution provides that a new Constitution can only be introduced to the floor of the National Assembly by the legislators themselves and nobody else.
Newspapers in the last 24 hours have reported that a communiqué was read in Abuja on Tuesday, 12 August, 2014 by the leader of some northern Conference delegates, former Inspector General of Police, Ibrahim Coomassie. A picture embedded in one of the newspaper reports has Coomassie flanked by former member of the House of Representatives, Muhammed Kumalia, former Federal Capital Territory Minister, Gen. Jerry Useni, one-time Senate President, Prof. Iyorchia Ayu, and others. Coomassie said that the Draft Constitution was meant to legitimize President Goodluck Jonathan’s third term agenda and that they objected to it. He said drafting a new Constitution is ultra vires the functions and mandate of the National Conference and that the group they were representing was dissociating itself from the Draft Constitution.
The objections of these core northern delegates and their arguments are untenable. At the inauguration of the National Conference on the 17th May, 2014, Mr. President said, “Let me at this point thank the National Assembly for introducing the provision for a referendum in the proposed amendment of the Constitution. This should be relevant for this Conference if at the end of the deliberations, the need for a referendum arises. I therefore urge the National Assembly and the State Houses of Assembly to speed up the Constitutional amendment process especially with regard to the subject of referendum.” The President was more visionary than some people care to think. From inception, he envisioned the situation before us today and was able to foresee its solution. Our elected legislators in the NASS should play their part in this process honorably by making legal provision for a referendum to take place and all will be well. This is what Mr. President and other Nigerians ask of them.
I was privy to email communications between some delegates in which they made reference to a   new partnership that the National Conference has spurned between the three southern geo-political Zones and the North-Central Zone. For lack of a better name, one of the communications christened it the “Greater South”. The implication of this new alliance is that four geo-political zones identified common progressive grounds during the Conference debates, while two preferred to maintain the status quo. Two-thirds majority of delegates are not just comfortable, but are very happy with the Conference Draft Constitution. Should the one-third conservatives have their way over the progressive and pragmatic majority? I dare say, no.
What was the expectation of the so-called “northern delegates” (minus those from the NC Zone, except for Gen. Jerry Useni and Prof. Iyorchia Ayu, who are both in their geriatric cycle of redundancy) when they were debating and reaching decision on constitution matters for three months? Didn’t they realize that their decisions were meant to be used to amend our Constitution? They should be happy that their work coming into fruition even faster than they had thought and that their labor may not be in vain after all.  
Again, in his inauguration speech on 17th may, 2014, Mr. President said, “In inaugurating this National Conference today, we are not unmindful of the argument of those who say that we do not need such a Conference since we already have an elected Parliament and an elected Government in place. As cogent as that argument may sound, I have chosen to act on the sincere conviction that in the truly democratic nation we are striving to build, we must never ignore the loudly expressed views of the majority of ordinary Nigerians.” The views of majority of Nigerians have been loudly expressed in the Conference ‘Draft Constitution’ through their delegates to the National Conference and must not be ignored.
In the same inauguration speech, which was commented upon by all 492 delegates, the President said, “The phrase in the preamble that says ‘We, the people’, has been variously criticized as being misleading because. According to the critics, the Constitution was not written by the people. There are also those who believe that the Constitution is not our problem but the political will to faithfully implement it for the peace and progress of Nigeria. While opinions on the matter can be as diverse as rain showers, I believe that irrespective of our personal views on the issue, no one can deny the fact that every Constitution is a living document that needs to be revised and improved upon from time to time. The United States, which is the model democracy in the eyes of many, has amended its Constitution 27 times since it was first adopted in 1787.” Mr. President, therefore, expected delegates to present to him a revised Nigerian Constitution at the end of their deliberations, provided they recommended enough amendments to the existing one to warrant the drafting of a new one incorporating their recommendations.
I seize this opportunity to urge all well-meaning delegates to defend their work, which is now embodied in the Conference ‘Draft Constitution’ and oppose their colleagues who might want to kill it. If they don’t, they would be doing the President and all Nigerians a great disservice. I would go as far as describing the production of a Draft Constitution for Nigeria by the  2014 National Conference as its greatest achievement.
James Pam, 13 August, 2014




Saturday, August 9, 2014

FAILURES OF 2014 THE NATIONAL CONFERENCE

                           Picture: A cross-section of delegates at the 2014 National Conference

President Jonathan’s National Conference has finally ended plenary sitting. What remains is the technicality of appending signatures to the consolidated Conference Report, which event is scheduled for 11th August, 2014. Thereafter, the Report will be presented to the conference convener.  
When I told a friend that I was writing an article on the failures of the Jonathan National Conference, he asked if my post-mortem examination was not too early. I replied him that I wasn't doing a post- mortem job but a listing of what the Conference did not do. Readers should please appreciate the difference as they read. Those who will thoroughly analyze the Conference may find this article a good starting point as they review the Conference agenda to assess if what was supposed to be done was done. It is also my hope that Mr. President would be better informed by this early commentary as he considers the final Report.
This article will attempt to read in-between the events that transpired while the Conference lasted. Identified gaps and newly created issues will be highlighted. The actual decisions reached by conferees are not the main subject of discourse here but what was omitted or created. Inductive reasoning shall be employed.
1.      CONVENER’S OBSCURE INTENTIONS: The true intentions of the convener of the Conference, President Goodluck Ebele Jonathan, GCFR, have remained obscure right from the conception of the Conference up to the current stage of development. He who was initially totally opposed to the idea of holding any such conference surprised Nigerians when he announced that he would convene one within weeks. The agitators of a Sovereign National Conference were overjoyed while the skeptics and antagonists concluded that Mr. President had a hidden agenda up his sleeves. How honest was the convener when he refused to propose the conference agenda but asked the Okorounmu Committee to draw up one? Instead of an agenda containing about a dozen key contentious issues, we ended up with a 38-point unwieldy agenda with two-thirds of the items better left for MDAs to fashion out. The released conference modalities and the modalities for the emergence of delegates were so skewed to enable Mr. President to remote-control the Conference that it further heightened the speculation that the President had a sinister motive embedded in his Conference plans. But what could these sinister motives be? Till date nothing is clear or certain. The nearest we have come to understanding his game plan is an inkling that he might be interested in ushering in a new constitution for the country based on the conference decisions. This assertion has been informed by two events. The first is his pronouncement that Conference decisions would be presented to him in the form of a new draft constitution (which now looks unlikely). The second is the Deputy Senate President’s attempt to surreptitiously smuggle a clause hitherto not discussed into the final report of the Senate Committee on Constitutional Review which he chaired.  The aim of the un-debated clause was to grant the President of Nigeria the constitutional right to introduce a new Constitution for the country by way of an Executive Bill to the Legislature. Was Senator Ekweremadu acting the script of Mr. President?
2.      MARGINALISATION OF MANY NIGERIANS IN CONFERENCE COMPOSITION: The modalities for the emergence of delegates excluded 80% of stakeholders in the Nigerian project. Those who had been clamoring for a National Conference for about twenty years were not recognized. Mr. President personally nominated the following delegates, 37 Elder Statesmen, 6 Youths, 6 Judicial Officers/Federal Government and another 20 delegates; thus giving Mr. President the opportunity to nominate a total of 69 out of 492 delegates. State Governors and the FCT Minister nominated another 109 delegates according to Nigeria’s Senatorial Districts. This means that a total of 178 delegates, about 40% of all the National Conference delegates, were nominated directly by Mr. President, the 36 State Governors and the FCT Minister. Mr. President and State Governors heavily influenced the nomination of delegates from among Traditional Rulers, Retired Military & Security Personnel, Retired Civil Servants and Political Parties. The combined effect of the foregoing is that Governments directly or indirectly nominated about 80% of delegates who attended the Conference. Ethnic nationalities who were in the forefront of the agitations for a conference were allocated 90 slots, or 15 delegates for each of our 6 geo-political zones. These 90 delegates were to be selected/nominated/elected somehow by the ‘stakeholders’. We all know now that State Governors hijacked the selection/nomination/election process and simply hand-picked their cronies and forwarded 90 names to the SGF’s office.   
3.      DOMINANCE OF THE PRESIDENT’S MEN: Though the Senator Pius Anyim-released conference guidelines specified that conference decisions shall be reached by consensus (100% agreement), delegates amended this to 70%, which was not adhered to even once as all final conference decisions were arrived by voice vote, which was not provided for at all in the conference modalities. Is a majority voice vote tantamount to a 70%  or more consensus? Why did delegates only object to the voice vote procedure when it came to the Derivation Principle decision? It is no wonder that newspapers are now saying some delegates are planning to sabotage or scuttle the final Conference Report signing ceremony on 11 August, 2014. Was there consensus on all the issues decided upon? It doesn’t appear there was.
4.      TRAUNCY BY DELEGATES: Many delegates played the truant school child during the Conference. Absenteeism among them was rampant. We daily observed the empty seats with bold name tags without their supposed occupants. Many final decisions were taken on Committee Reports when less than 70% of delegates were at plenary sessions. Should such decisions bind the millions of Nigerian who were under-represented by their un-elected so-called delegates?
5.      COMPREHENSION OF ISSUES BY DELEGATES: Many delegates did not comprehend the issues at stake. This could be deciphered from many of them who were interviewed by media house after debates. Many displayed their ignorance and incompetence. The last decision to be taken at the Conference to the effect that the Federal Government should set up a Technical Committee to handle the highly emotive 13% Derivation Principle proves this assertion. Among the 492 delegates were men and women from all professional callings. Why did the conference not deem it fit to constitute such a Technical Committee and make the needed recommendation for amendment?
6.      INABILITY TO SOLVE PRESSING NATIONAL ISSUES: One monumental failure of the Conference was the abdication of its responsibility to decide on the Derivation Principle. The conference secretariat short-changed delegates by deciding not to allow a debate on the issue. In short, what is going to be adopted as a final conference decision is not a decision at all but an abdication. Nigerians were shocked to see watch the Conference leadership impose a no-go area for conferees. The Derivation Principle effectively became a no-go area.
7.      DELEGATES’ CONTRIBUTIONS: In terms of individual contribution to the conference by delegates, we estimate that less than 50% of delegates contributed meaningfully towards the final conference resolutions. The inference from this is that it is likely that 492 was an unwieldy number of delegates for such a conference. It is also likely that up to 50% of the government-selected delegates were undeserving of the privilege to be there. This is another dimension of corruption.  Delegates for national assignments should never emerge again in the manner the National Conference delegates emerged.
8.      NATIONALISM AND NATIONAL COHESION: Many delegates claim that the national interest was the overriding logic in their deliberation, but we find it difficult to agree. Every issue was viewed by delegates either through religious prisms or through regional trick books or through well-polished and sophisticated ethnic binoculars. May be the only exception to this was the recommendation for the creation additional 19 States in the country, which was a really nationalist decision, although the North-West and North-East delegates opposed it. Recollect that the Conference proper was preceded by a religious protest to the Convener led by the Sultan regarding the ‘lopsidedness’ in the faiths of delegates. The last impossible decision on Derivation was aborted because the so-called ‘North’ insisted that the newly recommended 5% Fund be restricted the NE, NW and NC zones. Nigeria’s greatest stumbling blocks remain ethnicity, geography and religion. Shall we ever change and become the nationalists that we always claim to be? The Conference failed to change us.
9.      RE-STRUCTURING: The failure of the Conference to achieve this most articulated progressive issue is another big failure of the just-concluded conference.  The South East, South South, South West and North Central geo-political zones arrived the Abuja venue of the Conference minds made up to demand the regionalization of the country into 6 Regions. Chief Femi Fani-Kayode recently published an article titled, “Give me Oduduwa Region or Nothing”. A South Eastern socio-political group has asked delegates from their zone not to return home if they do not secure a recommendation for the creation of a South Eastern Regional government. Everyone thought Professor Jerry Gana would finally deliver a Middle Belt Regional Government to the eternally oppressed Christians and minority tribes of the North Central zone. Alas, the much-touted return to Regionalism and the Parliamentary system were not to be. What happened? Only the North West and North East objected. Suddenly we heard that the Lagos people said they couldn’t imagine themselves travelling to Ibadan for decisions once again. They have made too much economic progress and Lagos State autonomy is sweet. ‘Northerners’ said the days of the Kaduna mafia are long over. Kaduna is no longer a power base or power symbol. Easterners claim that they have invested too much in real estate, especially hotels, in Abuja to be separated and legally confused by 6 new regional constitutions in the country. It appears that the Middle Belt people are the true losers in the failure to achieve a return to regionalism. Why did two-thirds of conference delegates capitulate on such an important issue? How will the still unresolved “Middle belt Question” be resolved? The actualization of the creation of the Conference-recommended 18 (or is it 19 States, one in the SE plus 18 others) is now the only hope for the liberation of the oppressed Middle Belt minority groups.
10.  LEGAL STATUS OF THE NATIONAL CONFERENCE AND ITS DECISONS: The lack of an enabling legislation for the convocation of the National Conference itself is one of its greatest undoing. The entire National Conference might turn out to be one monumental waste of time and resources if our National Assembly legislators have their way. They say that there is no provision in our Constitution and Statutes books to accommodate the decisions of the just-concluded Conference, and this is true. Similarly, there is no provision for the much-touted referendum either. The un-cooperative legislators said they will throw out the Conference Report whenever it is presented to them for ratification. Why didn’t Mr. President first propose a Bill establishing a National Conference Commission before convening his conference? We recollect that many Nigerians advised him to do just that. Failure to have such legislation in place could have spelt doom for the National Conference even before take-off.    
11.  DEVOLUTION OF POWERS: The Conference failed to devolve some of the vast legislative powers vested in the Federal Government of Nigeria by the 1999 Constitution to its federating units, the States. Many had hoped that the Conference would recommend the transfer of many of the 68 items on the Exclusive Legislative List in the Second Schedule of the Constitution to the Concurrent List which has just 30 items. Prominent constitutional lawyers, including one of the authors of the 1999 Constitution, Prof. Nwabueze, submitted suggestions for achieving this. In my opinion, items such as Census, Commercial and Industrial Policies, Construction, alteration and maintenance of roads, Creation of States, Fishing and Fisheries, Labour, Maritime Shipping and Navigation, Pensions and gratuities, Police and other government securities, Prisons, Public holidays, Quarantine, Railways, Service and execution in a State, The formation, annulment and dissolution of marriages and Trade and Commerce should better be on the Concurrent List. Mind you, the Federal Government will still be able to legislate on them as the name ‘concurrent’ suggests.
12.  SIZE OF GOVERNMENT: Today we have a federal government with 3 tiers of government, about 450 Ministries, Departments and Agencies (MDAs), 36 State governments with their own 3 tiers of government, State MDAs and 774 Local Governments. Recurrent expenditure is 70% on the average across the country. Therefore, only 30% of government expenditure is of capital benefit. The Conference failed to recommend a significant reduction in the colossal size of our administrative apparatchik.
13.  EXCESSES OF STATE GOVERNORS: The overbearing interference of State Governors in Local Government administration should have been checked. Instead, conferees decided to ‘throw out the baby and the bath water’. They recommended the scrapping of the LGs and States’ independent electoral bodies. What is the problem? The problem is that the freedom of the Local Governments has not been guaranteed by our Constitution. The Joint State/Local Government Account should have been recommended for abolishment. Also, the constitutional provision that the development of Local governments shall be determined by States should have been equally recommended for abrogation.  
14.  SOCIAL ILLS: The many social ills bedeviling our society were not addressed. Nothing substantial was recommended towards ending our galloping governmental corruption, the huge and growing economic dichotomy between the ‘haves’ and the ‘have-nots’, run-away unemployment, diversification of our mono-product economy, deteriorating education standards and growing security challenges. Majority of Nigerians are groaning under the yoke of these ills and yet the Conference failed to address them. The Ill-Gotten Gains Act recommended by the Conference will rely on the same corrupt Nigerians to implement it ‘honestly’. If the Federal Character Principle has been violated by officials with impunity in the past, then we should not expect a different attitude toward the recommended Act. In the same vein, the Conference recommendation for the establishment of a Religious Equity Commission will not solve the problem of religious favoritism and discrimination. However, Conference recommendation that all Governments should stop sponsoring religious pilgrimages, which amounts to about N350 Billion waste annually, is highly welcome.  
15.  NOMADIC FULANI/FARMER CLASHES: This issue was on the Okorounmu Presidential Advisory Committee’s suggested conference agenda, yet it was not treated. Nomadic Fulani herdsmen are daily clashing with their host communities all over the country. Fatalities from these clashes are running into tens of thousands. A solution to this problem is urgently needed. We cannot see any other solutions to the problem apart from ending nomad-ism, embarking on moves to settle the nomads on ranches where they will practice integrated sedentary agricultural/animal husbandry. Land resource has become scarce and too valuable for farmers to guarantee our ever increasing numbers of nomads and their cattle eternal and unfettered access to it. Nomadic Fulani people should not remain simply as floating Nigerian ‘citizens’ but must be identified with by their States and Local Governments of origin and ‘indigeneship’ as is the case for all other Nigerians.
16.  FISCAL FEDERALISM: Called by different names – resource control, revenue sharing Derivation Principle and fiscal federalism – it was hoped that this vexing issue would be settled once and for all by the Conference. However, delegates almost went physical on it as they defended their regions or tribes or States at the expense of national interest. In the end, Justice Kutigi, and his team of officials usurped the responsibilities of the delegates by recommending that the issue be left to the Federal Government to address via a Technical Committee. The question one can ask is whether the Technical Committee will not be made up of Nigerians with the same emotions as the delegates. Will Nigeria ever achieve true fiscal federalism?
17.  FREEING THE LAND USE ACT: Failure to recommend the freeing of this piece of legislation from the Constitution is a great shame. Why is the Land Use Act part and parcel of our Constitution anyway? Amending the Act now requires a constitutional amendment. Parliament should be able to amend it just as other statutes. Obtaining title to land and the obnoxious Governor’s Consent to Mortgage as contained in the Land Use Act have stood in the way of providing low-interest long-term funding for land development and the use of land resource as loan collateral. Housing development has been greatly hampered by the inability to quickly secure land title. Our housing deficit today stands at an unbelievable 17 million with no solution in sight. What a shame!

James Pam

01 August, 2014