By Ambassador Usman Sarki
Writing on the constitution is a very crucial task for the philosopher or historian. As the “basic law” of any civilized country, understanding the tenets of a constitution and its essential boundaries should be a matter of the greatest interest to its citizens. Since no idea is “original” in essence, I am duty bound to acknowledge that in writing this essay, I have drawn ideas extensively and indiscriminately from the book, “The African Colony” by Mr. John Buchan.
Nigeria is going through a stressful period cloaked in uncertainty about its democracy and future unity. A lot of stress is being placed on the country’s constitution especially by those agitating for its review, amendment and even abrogation. In the process, the most odious abuse of freedom and constitutional liberty is being perpetrated in the name of human rights and democracy, while the concomitant imperatives of responsibility and accountability of citizens are somehow not being observed.
In consequence, governance in Nigeria has become a rather contentious and needlessly protracted affair, in the process of which much demands are being placed on the country’s constitution, albeit uncritically and with a large dose of skepticism. On the most trifling of excuses, and over the most inconsequential and transient of issues, calls for the breakup or dissolution of Nigeria are constantly expressed, and threats about instant and dire calamities are spewed around.
It is in consideration of this lamentable state of affairs that I decided to write this short treatise on the constitution, hoping that a few useful insights could be glimpsed from it, and even some important lessons might be learned there from. A constitution is basically the framework for governing a nation or a country. It can either be written or unwritten depending on the peculiar idiosyncrasies of the country.
A constitution sets the framework for the making of laws and administration of justice. It establishes the parameters in which the business of government is conducted, and prescribes the rights, responsibilities and privileges to be accorded to, or expected from the citizens.
Importantly also, a constitution prescribes the forms of government in a country, establishes the boundaries between offices of state, as well as creates designations and titles for the principal officers entrusted with the conduct of the business of government. Likewise, it provides general guidelines for civil and criminal jurisdictions in the country, and the liberties to be naturally or automatically extended to all citizens without discrimination.
The constitution therefore; is the bedrock of civil society and democratic governance, since it provides for the rules of conduct and establishes the general guidelines that demarcate roles and responsibilities between and among the different structures of state and government in the country. The easiest and surest way to subvert a country is to demolish its constitution or render it unworkable.
In this way, chaos will ensue and civil governance becomes virtually impossible. If such a trend should be avoided in Nigeria, due regard must be given to the constitution and appropriate measures must be adopted to ensure that it is not rendered a superfluous instrument in the hands of those to whom power is entrusted.
What determines the framing of a constitution?
The people’s collective consciousness about themselves and their present and future needs, must underpin any country’s constitutional framework. The constitutional requirements of a country are therefore; never determined solely by its political needs. History, sociology and even psychology must be thrown into the equation in framing a constitution so that previous forms of government of the people, their idiosyncrasies and prejudices, their fears and hopes and their future aspirations, should all be taken into account, rather than giving preponderance to political theories and forms of government alone.
In constitution-making, and even afterwards in its operations, regardless of the forms of government, the people as a unit, as an organism, must be considered as the repository of power and sovereignty, and the final arbiter in all things and processes. The people’s duly elected and sworn-in representatives in the executive and legislative arms, who are subject to recall and replacement where such are provided for, and who make decisions on its behalf, should be saddled with the task of framing a constitution and its review when and wherever this becomes necessary.
The first task of the constitutional process is not that of outlining the forms of government or even the setting out of the objectives and priorities of the State, but rather, it should be the judicious separation and admixture of powers and responsibilities between the legislative and executive arms respectively. That bane of many a democratic dispensation should first and foremost be settled before any other issue is tackled. The judiciary’s powers are always settled, clear and unalterable, so there is little to say about that important tier of government. Upon its opinion and integrity, upon its judgment and decisions, rest the fates of constitutional democracies.
As such every self-respecting nation must first and foremost, establish the credible basis for the judiciary to perform its tasks and discharge its onerous responsibilities in an unfettered manner. Above all, the mystique and aura of inviolability of the judges and their offices must be deliberately cultivated and upheld by the entire nation, more so by the executive and legislative arms, for the sake of the commonwealth and the perpetuation of that most intangible and fragile but indispensable of things – the rule of law.
The relationship between the legislature and the executive has always been one of suspicious co-habitation and turf warfare at the mildest. Such outcomes should be anticipated and dexterously addressed by the constitution. Likewise, the process of the review, amendment or repeal of the constitutional provisions which is another bone of contention, must also be given careful thought and weight so as not to make it too cumbersome or too facile to achieve. In either case, it will be a recipe for disaster and a potential source of dissolution of the system if not the country itself.
There must therefore; be a right balance established by the constitution itself about its review process. Here too, the role of the judicial arm should be given clear preeminence for obvious reasons. A constitution should not only be framed for the present needs, but also for future evolution and growth of the nation. The people’s sentiments must therefore; first and foremost, be understood and cultivated while degrees of responsibilities should be inserted that would protect, guide and tutor future generations to come about their individual and collective responsibilities to their country and society.
The constitution is not only a political document; but an economic treatise as well. It should clearly delineate the form of control of the resources of the country and their allocation to all units in the government structure of the nation. Without delving into the finer points of economic arrangements in the society, the constitution should endeavour to establish parameters whereby such issues as revenue mobilization and fiscal allocation, taxation and access to common patrimony like land, water and forests, minerals and other national resources are exploited for the enrichment and common good of the nation.
For the sake of maintenance of an open and democratic society, it is of the utmost importance that the constitution ensures that the business of government is not hidden from the people. The greatest subversion of any government is for important matters to be decided behind closed doors or in a system of private and clandestine correspondences between powerful individuals pursuing narrow private interests based on patronage and protection of exclusive rights.
Every provision of the constitution must have the interests of the people uppermost in its view. It would be wrong to simply equate “Country” or “State” with the people. The people is the distinct element that supervenes both in terms of it being the wellspring of legitimacy and the bedrock of the law. Where the people do not agree with a given law, its passing and enactment should be null and void. Where the people’s interest is not the over-riding or the sole objective of policy, the undertaking of the government and deployment of the resources of the country and the State must not be contemplated.
The issue of representation therefore, becomes a critical factor in the constitution. Proportional or other types of representation, not complicated or unduly made contorted by party or class interests, must be delineated and enshrined, to give a level and uniform say to all and sundry. The dichotomy between majority and minority ethnic groups for instance, will always remain a touchy issue in a democracy which must be judiciously addressed and ameliorated by the constitution.
Another important consideration of course is the allocation of nationally generated resources such as the different taxes, foreign income from trade and exploitation of the country’s natural and human resources. How these should be shared on the basis of well understood and collectively negotiated principles, is vital to achieving harmony in the country.
The constitution is a “living document” only when it is made to be so in terms of its continuity and relevance and not for a moment only, but in a timeless dimension that takes into account the vicissitudes of politics and transient innovations in governance. Only then can it be considered as “living” in terms of meeting the generational needs of the people. It is not the “whereas”, “thereof” and “theretofore” that make for a better constitution, as these are mere words that embellish the document in niceties.
The substance of a constitution is its moral significance. Its defining characteristics should be as simple and straightforward as possible, and directed at the needs of the people during the time of its crafting and for the distant future. Indeed, it should be crafted as a timeless document that requires few tinkering as time passes by. To achieve this, it should be based on the temper and mood of the people.
A constitution does not arise from a vacuum, a tabula rasa so to speak. It should arise from the people’s collective experiences and build upon these to form an instrument or a vehicle for their organization as a nation, and serve as the legal touchstone for all their governance needs. Basing a constitution on precedent matters greatly to its fecundity and acceptability. It should proceed from the people’s collective or group recollections of forms of government under which they once lived no matter how simple or primitive those systems are imagined to be.
The grains of such early or even primordial systems would now furnish the crude cement from which the mortar for the new constitution could be fashioned. The so-called Emirates system and Chiefdoms in the North, the Kingship of the Southwest and the loosely federal acephalous system of the Southeast based on age grade system and other types of societal arrangements, should ideally be the bedrock upon which a viable form of government could be fashioned.
Age and gender perspectives should also inform the crafting of the constitution. Where between 60 to 70 percent of the population consist of women and youth, the way a country is governed should rightly matter to them. How the constitution that shapes the government is made is a matter therefore that should involve them from the beginning to the end. The efficacy of a constitution rests largely on its simplicity. Since the issue of franchise, (that most difficult of subjects to be settled without a bit of a dose of emotion and conflict of interest), has largely been removed from our consideration, the remaining fundamental matters should be agreed upon without too much difficulty and within a limited period of time whenever a new constitution is discussed.
Franchise in our own case, should be the giving of representation to district, cities, towns and villages. It should by no means be concerned with individual persons who are to be given the right to participate in one activity or the other. The constitution should be implicit on the matter of individual representation and enfranchisement of persons. This can with one stroke, be established by the constitution as involving persons above a certain age or social condition such as absence of a record of conviction and imprisonment for serious or treasonable offenses. A criteria based on ownership of property, for instance, could be admitted if the social conditions of the country so demand or permit.
The constitution should not be presumed to be the instrument of the abolishment of class differences or inequalities. These could be settled by time and practice. Liberty and freedom may be strongly advocated, but equality even in nature, is a nonexistent factor so much so in human conditions. The constitution should therefore, not be too prescriptive about inherited differences which can be made moribund by time and evolution of the society.
Factors like literacy level matter in granting certain franchises to persons, which could be limited in duration or extended to an indefinite period of time depending on the objective conditions and realities that face the nation at the time of the crafting of the constitution. Since we have no reason to disqualify any groups of citizens from enjoying the franchise, it is logical that its consideration should be both limited and technical in nature. A few paragraphs appropriately worded will suffice to treat the issue in the constitution without the need to dwell on it for too long.
The demarcation of constituencies is a highly significant matter in a constitution. Without constituencies there can be no constituents, and without these there can be no elections because there can be no voters and candidates to be voted for. For these basic reasons, the whole country must be divided into viable and reasonably defined constituencies with clear delimitation and demarcation of their boundaries at least on paper.
A correct head count may be necessary in determining the allocation of seats. But rough estimates could be arrived at by deduction and other mental exertions which would suffice in providing the basis for the delineation of the required numbers of constituencies in each district, province, state or zone. The population spread and density across the country should be taken as a baseline for the exercise. Distinctions between town and country as well as geographical obstacles to population concentration must also be noted.
Swamps, deserts and forests naturally do not conduce towards harbouring dense populations. Conversely, great agricultural, commercial and industrial centers can be judged to be the gravitational points of large populations. Common sense and a bit of academic prognosis could eventually provide the basis for computation of the persons per square kilometer in a given area, and the final determination of the number of persons per constituency in every State or region. On this basis, the number of voters required to form a constituency can either be fewer or more depending on the perceived population concentration in each.
Prudent and judicious appraisal of the needs of the people would make the proportional or other types of representation per constituency first in favour of the less populated provinces over the districts, and the districts over the large towns and cities. This is a natural discriminatory disposition to ensure balance and avoid denial of equal rights to the former two in favour of the cities and towns.