Constitutionalism and the national question in Nigeria (V)

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Governor Aminu Waziri Tambuwal of Sokoto State.

By Julius Ihonvbere

What has become power sharing in the context of Nigerian federalism would normally be a good political agenda designed to open up opportunities to disadvantaged communities and give all nationality, religious, and cultural groups an almost equal opportunity to manage the affairs of the nation. But in the Nigerian context, we need to be very cautious if we are to understand the driving forces behind the strident calls for power sharing that has become a national obsession. The truth is that Nigerian politicians have been calling for new patterns of power sharing not because they are genuinely interested in gaining a share of power in the interest of their respective nationality, religious, or interest groups, but because they see such arrangements as an easy route to grab power and deploy it for private primitive accumulation.
There is no evidence of any correlation between the access that Nigerian elites have enjoyed under the guise of power sharing and an improvement in the conditions of living of the Nigerian people. It is actually possible to contend that the politics of power sharing has not in any way been of benefit to the generality of Nigerians. In fact, members of the political elite have grabbed power directly and though the working of various power sharing arrangements and have turned around to use that power to dominate, abuse, marginalize, terrorize, exploit and intimidate non-bourgeois communities and constituencies. The criminal looting of public funds, the mismanagement of the public services, the gross inefficiency of the bureaucracy, and the absence of basic facilities needed to make life comfortable for the majority are indicators of the failure of the Nigerian elite and its use of political power. Nigerians, in spite of the production and exportation of oil and the collection of well over $250billion since 1958 from oil sales, have grown poorer and poorer. As a federal state, power-sharing arrangements have revolved around the following: a). Rotation of party/political positions among geo-ethnic zones; b). Federal character arrangements in political appointments guaranteed in the constitution; and c). Zoning arrangements designed by political parties to ensure the distribution of party/political positions;
However, in spite of all the arguments, quarrels, and conflicts over power sharing since 1960, the results have failed to reassure minorities and marginalized communities just as it has failed woefully in generating a sense of inclusion, patriotism, or belief in the national project. It has not bridged the distrust between Christians and Muslims; between north and south or east and west; between oil producing and non-oil producing communities; between the military and civilians; or between the state and civil society.
As well, it has not resolved the perpetual distrust and conflicts between majority and minority ethnic groups in the country. With the pathological fixation of the Nigerian elite on power grabbing by any means to facilitate private accumulation, it is in no position to address these contradictions. Power sharing requires some degree of discipline and an ability to rely less on the direct deployment of state control in the interest of private accumulation. Power sharing requires that the political elite respect the rules of political competition and learn to accept defeat. Rather, the Nigerian elite does not accept defeat.
The state is seen as a private domain. Those that control power make no distinction between their personal bank accounts and the public purse. As well, the power elite does not believe in the give-and-take that informs and strengthens democratic politics. Many have been known to fund military coups against legitimately elected governments. The irrationality of the Nigerian power elite, often rationalized in the name of speaking for or representing particular ethnic and regional or religious communities, has worked directly to encourage the excessive concentration of power at the center and the near total erosion of federalism. As indicated earlier, military rule, in which the elite robustly participated at all levels, did not help the situation. Now that the military has temporarily disengaged from formal politics, its proteges appear incapable of carrying out the necessary political restructuring needed to support the consolidation of democracy. Why has this been the case in Nigeria?
Among other explanations, the answer can be found in the premium placed on power in the postcolonial era. The state has become the quickest instrument of capital accumulation. The challenge is to penetrate it by any means necessary and preside over its resources. The reality is that the resources are not generated from tax collection by the so-called federal government. Rather, especially since the end of the civil war in 1970, the resources have come from the production and exportation of oil found mostly in the new ravaged Niger Delta. Since the elite is rabidly corrupt and largely unproductive, it required undemocratic mechanisms to control the communities so that it could cheat them out of its resources. This is exactly what is behind the numerous dubious and diabolical revenue sharing arrangements, the undemocratic power arrangements, and the robust alliance between the military and the Nigerian power elite. For those that have come to locate their visibility, accumulation, opportunities, and power at the center and the ability of that center to control oil resources, the devolution of power or refederalization is hardly on the political agenda. As is the case with Olusegun Obasanjo since May 1999, it is easier to harass the governors, threaten martial law or state of emergency, issue shoot-on-sight orders to the police, set up commissions that are designed to keep the status quo, and refuse to open up the constitution review process to the people of Nigeria.
As was to be expected, the combination of the contradictions above have generated more agitations and conflicts for and over power sharing as restless minority communities, especially in the Middle Belt and Niger Delta continued to make strident demands for the right to be involved in decision making and in the governance of the country.
Militarization and Defederalization
It will not be wrong to conclude that the military has practically ruined the political future of Nigeria. Of course, it is still possible to correct the terrible legacies of military brutality, mismanagement, corruption, and negative politicking. With the first intervention in politics in 1966, the military not only set the basis for eroding all structures and features of federalism but also began to build new authoritarian structures and attitudes derived from its grossly undemocratic, intolerant, and commandist nature and structure. Though the military once again retired to the barracks in May 1999, today, Nigeria is certainly less united and peaceful. Yet, if the military created several states and local governments, introduced a new anthem and pledge, created a new capital, constructed some highways (without feeder roads), and created more multimillionaires, it failed woefully to reassure minorities and other disadvantaged communities that there was a future for them in the Federal Republic of Nigeria. More Nigerians have been killed in peacetime under the military than ever. Religious, ethnic, and class-based riots have become part of everyday life only because the military was insensitive to the demands of nationality groups. More often than not, it treated such demands as irritants and relied on repression, co-optation, violence, and temporary measures to deal with agitations for increased minority participation in power structures and the return to true federalism.
By .defederalization. we refer to the process of making unitary what was once federal. In other words, defederalization is a deliberate process of eroding or dismantling a federal system and replacing it with a unitary arrangement. The military not only concentrated power in itself and the center, but also ensured that the states were reduced to mere administrative units taking orders from the center. The excessive centralization of power, resources, and opportunities also encouraged the rise of authoritarianism and other forms of despotic rule, and the negation of democratic values. As well, the personalization of power and politics under the military was made possible by the centralization of power and resources at the center. Hence, under the Generals Babangida and Abacha juntas for example, Nigeria was perceived or discussed in terms of their personal whims and caprices. Relying on violence and intimidation, the military arrangement introduced all sorts of undemocratic values, reified existing contradictions, generated new conflicts, and negated the fledgling democratic platforms that were emerging in the first republic. The reliance on decrees that oust the jurisdiction of the
law courts and by disrespecting existing social and cultural institutions, the Nigerian
military destroyed possibilities for inter-ethnic harmony; nation-building opportunities, and platforms of pluralism and tolerance within and between nationality groups. It was not unusual, especially under the Abacha junta that the top ten senior positions in the country were all occupied by persons from the same ethnic and/or religious group. As Pini Jason has aptly noted, the Abacha junta in a space of five years removed every remaining semblance of Federalism from the governance of the nation. Being no respecter of any rules, he reduced the affairs of the state to a conspiracy, an affair between himself and few trusted locals. If you were not from Kano or of Kanuri or Lebanese extraction, you didn.t qualify for any worthy post. Those who were allowed at the outer peripheries of power were either those who did him favours or those who did his dirty jobs. In such a situation, it was very easy not to see the problems of Nigeria beyond the needs of Abacha and his acolytes and courtiers.
Furthermore, according to Jason, the military, in total disregard for the principles of federalism and as evidence of insensitivity to the need for equal representation in the country’s power structures, went all out to concentrate power in the hands of a particular ethnic group. The situation under the Abacha junta serves as a typical example:
Let’s take a typical situation for example. Were Abacha to desire an advice on the legal situation of Chief Abiola.s pending case in the Supreme Court, he would have had in attendance, his Special Adviser on Legal matters Professor Anwalu Yadudu, Attorney-General, Alhaji Abdulahi Ibrahim, the Chief Justice, Muhammed Uwais, National Security Adviser, Alhaji Ismaila Gwarzo, his Chief Security Officer, Major Hamza el-Mustapha, the Director- General of Military Intelligence, Brigadier Sabo Mohammed and perhaps, the Secretary to the Federal Government, Alhaji Gidado Idris. But tell me, where can you locate anything .federal. in this assemblage? If you say that this group, most probably conducting their strategy meeting in vernacular, would not be tempted to see the matter as an us versus them, you are probably lying. If it concerned labour unions, you would add the Minister of Labour, Alhaji Ahmed Gasua and you would end up with the same unfederal assembly!

If he summoned the Inspector-General of Police, the Deputy IG, AIGs and Commissioners of Police, you would still have the same sectional assembly and sectional solutions to a federal problem. There is nothing equally federal in a situation where people from one section of the country are solely in control of all the border posts of the immigration, and almost all the area administrators of the customs. That simply amounts to deliberately holding the rest under siege.
The situation described above, reflecting a situation of near absolute defederalization, is not imaginary. All protests against this .unfederal. development were met with unmediated repression. This tactic drove opposition elements abroad or forced them to generate more militant and political programs for engaging the neocolonial state. The fact that the non-hegemonic military- dominated state was incapable of instituting a truly inclusive and democratic system has become rather obvious to minorities in the country. This realization is what has increased the militant agitations for autonomy and local control over local resources. The national gyrations of state creation led to the emergence of states that were not viable and only ended up in strengthening the central government on which they were all totally dependent for revenues. In any case, each new state generated its own minority question and thus compounded the sites of contradictions and conflicts all over the country. To the extent that the control of power was still coterminous with accumulation and the definition of self-worth, those that dominated the state continued to monopolize it at the expense of power sharing options.

Under the military, Nigeria became a federal state in name only. All power came from Lagos or later, Abuja. All opportunities came from Abuja. All major contracts came from Abuja or from the offices of the representatives of the Commander-in-Chief in the various states. All Decrees came from Abuja and yet, the .lord. in Abuja was not elected by any one and was not accountable to anyone. The almighty federal government paid the salaries of primary school teachers in the states. It constructed and repaired roads in the states and supplied drugs to state owned hospitals. In the days of General Abacha, a super federal government agency, the Petroleum Trust Fund (PTF) was even established to perform the task of several federal and state ministries. Those that were
shut out of power had no choice than to either toe the established line or exist on the fringes of power. Central planning became the ideological basis for growth and accumulation though it was hardly accompanied by any clear-cut ideological frameworks for combating dependence, underdevelopment, and instability. The so-called mixed economy became an excuse for using public funds to subsidize the confused accumulative strategies of an equally confused political elite. The state was turned into the accumulative machine of the bourgeois class. As they looted the state, largely aware that they could not be probed under a junta that was accountable to no one, they tightened their control over the state, its institutions and resources and did everything possible to keep others out. This generated deeper contradictions not only within and between
nationality groups, but more specifically between elites that felt shut out of power and
those that dominated power. This was also acted out within the military as coups and
counter-coups became avenues for expressing the misguided ambitions of some military
officers as well as a strategy for contesting the power space. The Majors Saliba Mukoro
and Gideon Orka coup of April 1990 that was ostensibly executed on behalf of the
Christians and southern states of the country was a typical example of this trend.
The advent of military rule, therefore, represented a major assault on Nigerian
federalism. In fact, federalism was summarily abolished as powers hitherto guaranteed to
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the regions were abolished or gradually taken over by the federal government. The very
first misguided assault on Nigerian federalism by the military, in a direct sense, was when
General Aguyi Ironsi promulgated Decrees No. 33 and 34 of May 24, 1966 abolishing
federalism and replacing it with a unitary form of government. Thus .National
Government. was to replace .Federal Government. in this new political adventure of
trying to force unity on Nigerians without the adequate political arrangements even as
Ironsi was seen as favoring the Ibo ethnic group in his appointments and policies. Of
course, this only gave further impetus to the contradictions that eventually culminated in
a civil war that led to the death of millions of Nigerians. Given that the constitution had
been suspended, regional parliaments abolished as were political parties, all powers were
now concentrated in the so-called .supreme headquarters. in the person of the
.Commander-in-Chief . and head of the Supreme Military Council (SMC). Regional
police forces were abolished, the military commands were centralized, education became
a federal affair, and all-important appointments at the state levels by state military
governors reflected a set pattern of politics dictated by the military head of state.
Finally, on the military, it has completely destroyed the fabric of Nigerian
federalism thus making it an almost insurmountable challenge for post-military
democratic governments to reclaim lost ground. This is so because in the last three
decades and more, most of the civilian elements that now occupy the seat of power in the
new Obasanjo dispensation were virtually made by and under the military. The world-
view and attitudes that they carry, more frequently than not, reflect the culture of military
authoritarianism. To be sure, part of the explanation can be found in the historical origins
of the Nigerian military: a force created by the undemocratic colonial state to visit
violence on the peoples of Nigeria. On seizing power it saw the Nigerian social
formation as a huge barrack under the command of the Commander-in-Chief with .obey
before complain. as its philosophy of governance, and thus incapable of grappling with
Nigeria.s robust and vibrant, even quarrelsome civil society. Believing in legitimation
(or compliance) by repression, the commandist, repressive, insensitive, and undemocratic
character of Nigeria.s military juntas have precipitated an almost firm condition where
power is dominated directly by the military retired and/or active, or by surrogates of the
military.
Constitutions without Constitutionalism: Recompacting the Political
Space.
Nigeria has never has a truly democratic constitution. To be sure, the country has
had legal constitutions, but they have hardly been legitimate. The country has never
adopted a participatory or process-led approach involving the various nationality groups
and the various communities, constituencies and interests that make up the country in
compacting its constitutions. It has consistently been elite-driven with the state playing a
critical role in determining the content of the final document. It is no wonder that the
constitutions have hardly served as coherent compacts for determining the relationship
between the ruled and the rulers and none has been able to ensure the rule of law and
popular participation much less transparency, accountability, and social justice. Nigerian
constitutions have been opportunistic documents designed to perpetrate what could be
regarded as a political fraud on the nationalities of Nigeria in particular minority groups
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and non-bourgeois constituencies. Finally, Nigerian constitutions have never been
instruments for ensuring the survival of the democratic project neither have they
prevented nor discouraged the subversion of the democratic enterprise by the military.
More so, the constitutions have not empowered the Nigerian people to have access to the
structures of power or to the constitution so they can claim ownership of the document
and deploy such ownership in the defense of their individual and collective rights.
As indicated above, military rule destroyed the basis of Nigerian federalism. The
concentration of power in the federal government and the commandist nature of military
rule turned Nigeria into a pseudo-federal state. This has turned out to be the basis of
agitations for autonomy and political restructuring demanded by the various minority
groups, opposition and human rights movements, and ethno-cultural organizations.23 The
1999 constitution hardly demonstrates any sensitivity to these issues. It hardly pays
attention to questions of autonomy or reorganization of political power and though it pays
so much attention to power and the definition of power, it is still lopsided in favor of the
center. The states of the federation do not have control over their own resources. This is
still the exclusive preserve of the federal government that has guaranteed only 13% of
generated revenues to the states where the resources are generated (see below). This is
no different from the situation under the military where the federal government illegally
appropriated the resources of units of the federation and doled out meager portions to
them under dubious fiscal arrangements.24 The debate in the oil-bearing and producing
communities of Nigeria has long gone beyond percentages to one of control. The 1999
constitution could not have been more unrealistic and out of touch.
Under the 1999 constitution, the states cannot set up their own police forces. The
State Police Force (SPF) is only a branch of the federal police force under a federally
appointed inspector general of police. Section 214 (1) is clear on the fact that .There
shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and
subject to the provisions of this section no other police force shall be established for the
Federation or any part thereof.. According to Section 214 (c), it is the National
Assembly that is empowered to .make provisions for branches of the Nigeria Police
Force forming part of the armed forces of the Federation… And the Commissioner of
police for each state .shall be appointed by the Police Service Commission.. Even more
ridiculous in a federal system, is that in the event of a need to maintain or secure public
safety and public order within the state, a governor may direct the commissioner of police
to take necessary action. However, according to section 215 (4), .before carrying out any
such directions.the Commissioner of Police may request that the matter be referred to
the President or such Minister of the Government of the Federation as may be authorized
in that behalf by the President for his direction.. After Nigeria.s experience in the first
republic, and given the bitter partisan quarrels that accompanied the 1998-99 elections,
the federal government can hardly be regarded as not being partisan much less interested
in objectively responding to crises in states if such crises might weaken the opposing
parties. The federal ministry of education does not just play a supervisory role; it also
dictates policy to the state departments of education.25 In fact, one of the first acts of
General Obasanjo as the democratic president of Nigeria was to pay the salaries of
striking teachers in the states. As it turned out, General Obasanjo had illegally
appropriated monies belonging to the state governments to perform this magnanimous act
for which he took a lot of credit!
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Citizens in a state cannot form political parties that are registered in the state and
interested in canvassing for support and contesting for office only in the state. In fact, all
parties are to comply with federally dictated requirements and are to be registered with
the federal government.s Independent National Electoral Commission (INEC). This goes
directly against the autonomy of the nationalities of the federating units and erodes the
ability of states to organize their political interests and processes independently. In fact,
the entire idea of parties being registered by the federal government means that the same
federal government could deny registration on the grounds that its requirements have not
been met. Given the experiences of the past, what the 1999 constitution has done is to
restrict the formation and operation of political parties to the wealthy. It is only this
wealthy class that can afford the cost of such an exercise. It also hardly recognizes the
fact that not all parties in the world are necessarily set up to win national elections. This
would continue to anger the minorities, the opposition groups, and locally based
politicians. As Balarabe Musa has already argued, ..the idea of party registration is
undemocratic. For instance, during the last election, we saw a situation whereby only
people who had money and who could afford to buy votes, were able to contest and win
elections..26 In other words, the cumbersome, expensive, and intrusive federal
government requirements for party formation and registration is a direct way of
encouraging corruption, elite-dominated politics, and the continuing marginalization of
persons without connections with the wealthy in the political process. The 1999
constitution negates a cardinal pillar of federalism by denying Nigerians the right to form
political parties at any level they wish and by doing so, it subverts creativity at the local
level by forcing it into the complex, corrupt and often compromised vortex of national
politics.
Because the state wishes to continue the concentration of power at the center, it
has avoided a direct engagement of the nationality issue. Thus it tries to forge a non-
existent sense of nationhood by forcing political parties to adopt superficial national
symbols in their logos, names, and presence in geographical spaces. The reality is that
these can (and have) been done without a true commitment to unity and the integration of
political interests and objectives. Most political parties that have described themselves as
.national. in Nigeria.s history have been dominated by power elites from the North, East
or West. Denying the nationality question is tantamount to postponing the evil day for
Nigeria because the degree of political alienation in the country that gave rise to ethnic
and regionalist groups like Afenifere and Oodua Peoples Congress (OPC), Ijaw Peoples
Union, Ahaeze, Middle Belt Forum, Midwest Initiative, Eastern Mandate Union (EMU),
Northern Peoples. Forum, and so on, cannot be wished away through superficial
institution building. Rather, Sections 221-229 stipulate regulations that are federally
determined and controlled. In fact, according to Section 223 (b), .the members of the
executive committee or other governing body of the political party must reflect the
federal character.. Section 222 (f) requires political parties to have their headquarters in
the Federal Capital Territory, Abuja. This is a clear negation of the rights of nationalities
to form their own parties, restrict their activities to their states or local governments, and
dedicate themselves to the improvement of their particular communities. In fact, the
federal stipulation means that only those that can afford the high cost of party formation
at the national level can pursue such an agenda.
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In a country with well over 250 distinct ethnic groups with a plethora of distinct
languages, the 1999 constitution declares in Section 55 that the language of the national
assembly shall be English, Igbo, Hausa, and Yoruba. This ridiculous and provocative
prescription is evidence of the arrogance of power that informs the politics of the
custodians of state power in Nigeria: the majority ethnic groups and retired/active
military interests. In their arrogance, they completely ignored the growing militancy,
awareness, organization, and demands of the other nationality groups in the country.
Thus, rather than accord all languages equality before isolating those to be used in the
National Assembly, the constitution and its civilian and military framers simply ignored
non-majority spoken languages in Nigeria. This attitude reflects the power configuration
of the country and exhibits the direct implication for resource control and redistributive
politics.
The 1999 constitution retained the vexing issue of the Land Use Act in Section
315 (d). This Act, passed in 1978 as the Land Use Decree under the previous General
Obasanjo regime, has angered minority communities, those that feel margialized from the
center of power, and the entire groups and communities in the Niger Delta. It was the
greed to control the oil wealth of the Niger Delta by an unsteady state and an
unproductive elite that led to the promulgation of the Land Use Decree. The decree
allowed top military officers, transnational corporations and members of the ruling class
to grab large parcels of land at minimal cost in the name of farming. In fact, following
the election of General Obasanjo in 1999, the leading groups in the Niger Delta,
including the Ijaw Youth Council, The Chicoco Movement, and the Movement for the
Survival of Ogoni People (MOSOP) met and announced their rejection of his election as
president because he was singularly responsible for promulgating the decree that took
away their land and vested all oil wealth in the federal government from which they are
marginalized. When President Obasanjo visited the Niger Delta in June 1999 to meet the
warring factions, Ijaw activists told him to his face that they still rejected the Land Use
Act and the constitution into which it has now been incorporated as it represented a grave
injustice and a negation of true federalism.
The various Niger Delta communities and groups have clearly articulated their
position, demands, and perspectives on the national question in various documents
including the Ogoni Bill of Rights; the Kaiama Declaration, the Ogbia Declaration, and
the Ikwerre Rescue Charter. The positions in these declarations have been endorsed by
other democratic groups such as Solidarity Movement of the Southern Minorities of
Nigeria, National Conscience Party, Oodua Peoples Congress, Movement for the
Survival of Easterners and Niger Deltans, Eastern Nigeria/Delta Unity Association,
Women of Nigeria International, and Igbo National Movement to mention a few. The
1999 constitution not only ignores these documents and demands but actually goes as far
as declaring that the provision on the land use act (and those on the National Youth
Service Corps (NYSC), the public complaints commission, and the national securities
agencies) .shall continue to apply and have full effect in accordance with their tenor and
to the like extent as any other provisions forming part of this Constitution and shall not be
altered or repealed except in accordance with the provisions of section 9 (2) of this
Constitution.. The Land Use Act has been included in the Exclusive Legislative List and
would continue to .have effect as Federal Enactment (…).. This is not only insensitive
to the demands of the various groups that have demanded increased control over their
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lands and other resources, but a clear demonstration of continuing federal domination of
the states as had been the case under military regimes. Without doubt, this would
continue to generate pressures, contradictions, and conflicts as alienated groups have
made it clear that the repeal of the land use act remains one of their primary objectives.
The 1999 constitution of the Federal Republic of Nigeria is anything but federal.27
One could make the argument that in spite of existing political structures at local, state,
and federal levels, the constitution assumes that the military was still in power! It simply
consolidates existing relations of power in favor of the central government. Section 4,
Second Schedule outlines a very long list of Legislative powers. The .Exclusive
Legislative List. is a long shopping list that includes everything with no attempt to bring
in the states, much less the local governments. Part II of the Schedule contains the
.Concurrent Legislative List. where both the Federal and the State governments have
powers to make laws. Even here, the central government has the final say on all issues as
the National Assembly is declared as the superior power whose laws shall prevail in the
case of conflicts. The Third Schedule lists .Federal Executive Bodies. such as the Code
of Conduct Bureau, Council of State, Federal Character Commission, Federal Civil
Service Commission, Federal Judicial Service Commission, Independent National
Electoral Commission, National Defence Council, National Economic Council, National
Judicial Council, National Population Commission, National Security Council, Nigeria
Police Council, Police Service Commission, Revenue Mobilisation Allocation and Fiscal
Commission. These are simply national or federal commissions designed to facilitate
federal regulation and control of the states up to the minutest details. In this context, it
has hardly altered existing relations that had reduced the states to mere appendages of the
federal government under the various military juntas. Interestingly, Part II of the Third
Schedule lists only four .States. Executive Bodies.- the State Civil Service Commission,
State Independent Electoral Commission, and the State Judicial Service Commission.
The national equivalents, save for the civil service commission, continue to have
significant influence in the performance of duties within the states. Thus, in terms of
addressing the demands of prodemocracy groups, human rights organizations, minority
communities, the various ethnic associations, women.s movements, the Niger Delta
communities, and the widespread calls for political restructuring to return the country to
true federalism with regional control over local resources, politics, and economic
activities, the 1999 constitution has completely failed to address these issues. It is strong
and long on power, but very weak and short on strengthening civil society, and serving as
the basis for mobilizing Nigerians for the construction of a tolerant, inclusive, and
democratic project in the next millennium. The constitution dos not pretend to be the
basis for operating a federal system of government.
To drive home its insensitivity to nationality agitations in the country, the
constitution has provided very stringent and clearly unattainable conditions for
amendments, state and local government creation, and boundary adjustments. What it
wants to do is preserve the current structures that favor the majority nationality groups
and silence the yearnings of the minorities. This also translats directly to majority control
over national resources within the excessively centralized power structures. For instance,
to create a new state, Section 8(1) of Chapter 1 provides that an Act of the National
Assembly shall be passed only if a request is supported by at last two-thirds majority of
members representing the area demanding the new state in the Senate and House of
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Representatives, the house of assembly in the state concerned, local government councils
in the area concerned, a referendum approved by at least two-thirds majority of the
people in the area where the demand originated, the result of the referendum is approved
by simple majority of all states of the federation through a simply majority of members of
the houses of assembly, and finally the referendum result is approved by a resolution
passed by two-thirds majority of members of each house of the national assembly. Aside
from the scary financial implications involved in this circuitous process, the framers of
the 1999 constitution knew very well that intra-party conflicts and competition,
personality cashes, ethnic and religious as well as regional suspicious would make this
process useless to the task of state creation. Clearly, the requirements already work in
favor of the majority groups that already dominate or control power and resources in the
current structures that the framers of the constitution appear determined to preserve.
Engaging the Ethnic Challenge: The Example of Ethiopia
Many have criticized the Ethiopian constitution of 1994 for reifying ethnicity and for
setting out provisions that would encourage secession and political breakdown. Others
see the bold and unprecedented provisions as a surrender to ethnic entrepreneurs and
warlords. I differ from this line of thinking. While ethnic federalism might not be the
best option for Nigeria, we must not shy away from ethnic politics. There is absolutely
nothing wrong with it. The contemporary return to ethnicity is a measure of the extent to
which the state has failed and become irrelevant to the survival of the people. Unlike the
state, the ethnic group provides more security and social services to the ordinary person.
Consequently, it is steadily replacing the state as a source of hope, protection, basic
needs, and personal security. This is why organizations like the Oodua Peoples Congress
(OPC) have great relevance. Of course, it could be abused. But there are ways of
building ethnic identity and commitments into a national agenda. It would be foolhardy
to ignore or fight it especially where the alternative provided by the state is suspect.
The Ethiopian constitution of 1994 directly addresses issues of language, nationality,
sovereignty of the people, supremacy of the constitution, human and democratic rights up
front. A country like Nigeria might actually draw some lessons from Ethiopia. It is
clearly a constitution that has drawn very painful lessons from the past. Rather than
pretend that ethnic consciousness and identity are superficial and try to homogenize the
diverse peoples of Ethiopia, the constitution declares that “All Ethiopian languages shall
enjoy equal state recognition,” though “Amharic shall be the working language of the
Federal Government.” It however allows “Members of the Federation” to “by law
determine their respective working languages.” In Article 8, the constitution vests “All
sovereign power” in “the Nations, Nationalities and Peoples of Ethiopia;” declares the
constitution as “an expression of their sovereignty” and that “Their sovereignty shall be
expressed through their representatives elected in accordance with this Constitution and
through their direct democratic participation.” In some way, this means that a military
government is clearly illegal even if this was not expressly stated as in the cases of Ghana
and Uganda. The Constitution declares in Article 9 that it is the “supreme law of the
land” and any other law shall be of no effect and that “It is prohibited to assume state
powers in any manner other than provided under the constitution.” This is obviously
directed at those military interests that might have ideas about overthrowing the
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government. The constitution makes provisions for no state religion and there is an
elaborate coverage of fundamental rights and freedoms. In Article 28 it gives voice to
international treaties on crimes against humanity ratified by Ethiopia and declares that
such crimes “shall not be barred by statute of limitation. Such offences may not be
commuted by amnesty or pardon of the legislature or any other state organ.” Article 33c
guarantees Ethiopian nationality to those who already have them as “No Ethiopian
national shall be deprived of his or her Ethiopian nationality against his or her will.” The
rights of women are directly addressed in Article 35 including “equal rights with men,”
and declares that “The dominant legacy of inequality and discrimination suffered by
women in Ethiopia taken into account, women, in order to remedy this legacy, are
entitled to affirmative measures. The purpose of such measures shall be to provide
special attention to women so as to enable them compete and participate on the basis of
equality with men in political, social and economic life as well as in public and private
institutions.”
Finally, the 1994 Ethiopian constitution, unlike most constitutions in Africa directly
engages the nationality question in Article 39. It declares that “Every Nation, Nationality
and People in Ethiopia has an unconditional right to self-determination, including the
right to secession;” “Every Nation, Nationality and People in Ethiopia has the right to
speak, to write and to develop its own language; to express, to develop and to preserve its
history;” “Every Nation, Nationality and People in Ethiopia has the right to a full measure
of self-government which includes the right to establish institutions of government in the
territory that it inhabits and to equitable representation in state and federal governments.”
Specifically on the right to secession, according to the constitution, this comes into effect
“when a demand for secession has been approved by two-thirds majority of the members
of the legislative council of the Nation, Nationality or people concerned;” When the
Federal Government has organized a referendum which “must take place within three
years from the time it received the concerned council’s decision for secession;” “When
the demand for secession is supported by a majority vote in the referendum;” “When the
Federal Government will have transferred its powers to the Council of the Nation,
Nationality and People who has voted to secede;” and “When the division of assets is
effected in a manner prescribed by law.”
When this Constitution was adopted it was anticipated that Ethiopia would fall to pieces
in months. Yet, what this provision has done is to take the rights or struggle for self-
determination out of the battlefields, the jungles and terrorist enclaves into the political
process through a collective determination of the steps and processes needed for self-
determination. In a country where states are “delineated on the basis of the settlement
patterns, language, identity and consent of the people concerned” as in Article 46 and
where Article 47 further states clearly that “Nations, Nationalities and Peoples within the
states enumerated in sub-article 1 (of Article 47) have the right to establish, at any time,
their own states” it would seem that by making the process open, democratic, possible,
and within reach, it has to a very large extent contained the cries and calls for self-
determination.
23
Ethiopia has had a history of coups and counter coups in the past. The new constitution
in several articles attempts to address this issue. In Article 87, it states clearly that the
“composition of the national armed forces shall reflect the equitable representation of the
Nations, Nationalities and Peoples of Ethiopia:’ that the “minister of Defense shall be a
civilian,” and that the armed forces shall defend the sovereignty of the country and carry
out assignments in accordance with the constitution. In fact, the constitution states
categorically in Article 87 (4) that “The armed forces shall at all times obey and respect
the constitution.” While these might not stop coups, they initiate a steady process of
subjugating the military to civil order. Democratic governments in Africa tend to
concede the democratic platform to the military by appointing active or retired military
officers to head the defense ministry. Of course, it is clear that Ethiopia has used its
constitution making experience to respond to the perpetual crisis of ethnicity and has
drawn lessons from the costly war that culminated in Eritrea’s independence. I cannot
think of a better and more effective way to openly acknowledge and protect the rights of
minorities and nationalities in the contemporary world. Making a constitution is only the
beginning of the struggle. Using it as the basis of governance and justice is the real
measure of progress.

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