National Constitutional Reform Conference Memorandum Submitted by Kano state Delegation

INTRODUCTION

It will be recalled that, following a resolution adopted by the Conference, the secretariat requested all delegates to submit their written memorandum. We have the honour to forward the following, being our contribution.

The views canvassed herein, in summary form, contain our well-considered recommendations and observations. They are the outcome of wide-ranging consultations with key stakeholders in our society, public hearings conducted to gauge the mood of and obtain popular mandate from the people of the State and are largely shared by delegates who aspire to common ideals, aspiration and share cultural affinity with us. It is our intention to submit, in an addendum, greater details to back up every point made.

SOME FUNDAMENTAL OBSERVATIONS
Before making our recommendations, we wish to point out what, in our considered view, are fundamental defects pertaining to procedural inadequacy, legal and constitutional anomalies and representational distortions all of which have attended the constitution of the Conference and its convening.

QUESTIONABLE PROCESS
With all due respect, we wish to observe that the basis of representation used is undemocratic, inequitable, unbalanced and runs foul of all established and conventional modes of constituting a body so important and invested with authority so broad and unchecked to shape Nigerian polity, economy, the society and its constitutional form of governance. It is unjustifiable, for instance, to give one state, which, under the 1999 constitution, has 10 members at the House of Representatives, equal number of delegates with another which has 24 members.

The situation is made even worse, where the President appoints, as his nominees, thrice as many members to the Conference for that State against the other. We wish to express our serious reservation regarding this lop-sided manner of constituting the Conference which leaves the process of its decision-making prone to manipulations and its ultimate recommendations full of distortions and their legitimacy suspect.

SHAKY FOUNDATIONS
The absence of an enabling law, which sets out clearly the powers, functions and limitations of the Conference has, in our considered view, further worsened matters. A process which has profoundly raised the hopes of Nigerians but is, without doubt, fraught with dangers and great potentials, ought not be anchored on so shaky a foundation. The disavowal of the entire process by an important organ of the state, the National Assembly, being a legitimate and existing law-making organ under our constitution and the House of Assembly, its State counterpart, both of which, like it or not, will have a thing or two to do with the ultimate outcome of the Conference, has further put to question the entire process.

To cure, salvage or otherwise ameliorate the observed defects in the process, we recommend that:

(a)           the President and all stakeholders should immediately embark on a deliberate effort to re-engage the National Assembly (NASS) to bring them on board;

(b)            that the President should propose to the NASS and get them to pass into law a bill which sets up the Conference and empowers it with specific functions; and

(c)            that the outcome of the Conference be subjected to National Referendum to confer it with popular mandate and legitimacy.

CONSENSUS BUILDING vs VOTING

We wish to note that an essential item on the agenda of the Conference is how to cultivate the wholesome spirit of consensus building in the Nigerian polity. We commend the President for urging the Conference to adhere to this mechanism in arriving at its decisions. Otherwise we continue to be apprehensive that resorting to the mechanism of voting by a Conference tainted by the inadequacies listed above will negate such a spirit and further aggravate matters.

Indeed the best way to commence cultivating such a spirit will be for the Conference itself to adopt consensus as the preferred means of resolving issues. We strongly recommend this method. By adopting the mechanism of consensus to decide issues, this Conference will be following the ample and wholesome precedent set by the Constitution Review Committee, the Constituent Assembly, the Constitutional Conference and the Constitutional Debate Coordinating Committee of 1987/88, 1988/89, 1994/95 and 1998 respectively. It may be recalled that these bodies worked hard to engender consensus building around issues. The few times when some of them abandoned this method and attempted to resolve especially controversial issues by voting landed them into stalemate, threats of boycott, needless acrimony and the avoidable overheating of the polity. 

Below are highlights of our key recommendations and observations

STRUCTURE OF THE FEDERATION AND GOVERNMENT

1.   The people of Kano State reaffirm their resolve to keep Nigeria as a single indivisible Federal Republic founded on the principles of democracy, liberty, justice, fairness and pluralism.

2.   All decisions made at the National Political Reform Conference should be regarded as proposals for the amendment of the 1999 Constitution as may be appropriate. All procedures prescribed in the constitution must be followed.

3.   The Presidential system of government, as enshrined in the 1999 Constitution should be retained.  Accordingly its structure of the Government and the three tiers namely Federal, State and Local Governments should be retained. Ways and means of ensuring good governance, transparency and accountability should be designed to strengthen the system.

4.   The existing 36 States and 774 Local Government Areas should be retained. But more powers and resources should be devolved to them. The proposals contained in the 1995 constitution which seek to devolve more powers to the lower tiers of government should be revisited with a view to borrowing a leaf therefrom.

5.   We recommend the amendment of our constitution to incorporate the tested and tried system of operating three distinct and clearly defined legislative list as provided for in the 1963 Regional Constitutions. Accordingly, provisions should be made for Exclusive, Concurrent and Residual list for the States. We also recommend the adoption of State Constitutions which, as in 1960 and 1963, will embody all those aspects of the 1999 which pertain to States. This will minimize undue uniformity and reflect diversities. It will augur well for and confer greater sense of autonomy to the federating units.  

6.   The traditional institution should be given a role in the Constitution. This is in view of the significant role the traditional rulers play in resolving civil disputes and restoring peace among the Nigerian citizens.

Rotational Presidency

7.   Rotational Presidency is undemocratic and therefore it should not form part of the Constitution. We wish to endorse the current practice whereby political parties build the principle of rotation in their strategy and electoral calculations by deploying its dynamics. As a matter of fact, since 1979, when the NPN introduced the idea of zoning and rotation, the practice has been gaining wide acceptance as a convention. We will not support fossilizing such fluid concept in hard cast constitutional provisions which may cause problems of interpretation and implementation leading, as a result, to unnecessary political crises which may thereby be generated.

Sovereign National Conference/National Conference

8.   Some commentators and agitators have called for a Sovereign National Conference instead of a National Conference. It is unconstitutional to hold any Sovereign Conference when there is a lawfully constituted authority in power.

Political Parties

9.   Nigerian people should be allowed to form parties as guaranteed by the constitution. In addition, party supremacy should be upheld by disallowing cross carpeting of elected officials as in the 1979 Constitution. Independent candidature should also be allowed to foster the spirit of greater participation and discourage party croynism. The funding of political parties should be based on the principles of transparency and accountability. And any government funding of parties should be based on the party’s ability to raise funds independently as well as their performance at election.

Human and Natural Resources Mobilization

10. The Nation should formulate a comprehensive agricultural policy that will ensure upward review of Federal budgetary allocation to the sector which also takes into account the proposals of international agencies to developing countries. A Policy which will facilitate a substantial and sustained provision of subsidies and other forms of incentives to farmers, including export subsidy, the creation of enabling environment and provision of protection to them, should be adopted.

11. Food security must be accorded high priority as in most other nations of the world because the Nation’s ability to feed itself is gradually dwindling in view of technological deficiency and increase in population. The National Assembly should, by law, set up a trust fund to set aside a substantial amount of money to be sourced from the Consolidated Revenue of the federation or the windfall from oil sales accrued in the last few years or such other sources as they may deem appropriate which should be deployed and dedicated solely towards the regeneration of the agricultural sector throughout the federation.

12. Appropriate instruments and guidelines should be put in place in order to monitor and evaluate all agricultural policies periodically. The agricultural research institutes should be adequately funded.

13. The Federal Government should hold in trust, control and facilitate the exploitation of all mineral resources in the country as enshrined by Section 44 (1.3) of the 1999 Constitution which states that: the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.

13. The revenue accruing from off-shore oil resources, which fall within the territorial waters and the 200 nautical miles by Exclusive Economic Zone guaranteed by international law and practice, belongs to the entire federation and should not be subjected to the derivation principle.

14. The exploration of Oil, gas, bitumen and other minerals should be intensified in the Chad Basin, Benue Basins or troughs and other areas in order to exploit the abundant availability of the resources in the country. The National Assembly should, by law, set up a trust fund and allocate a substantial sum of money to be sourced from the Consolidated Revenue of the federation or the windfall from oil sales accrued in the last few years or such other sources as they may deem appropriate to be deployed and dedicated solely to a sustained exploration and exploitation of the resources in these and other areas.

15. The Nation should diversify its sources of energy for strategic reasons in line with the global trend since hydro-carbons are not renewable and the Nation has abundant renewable sources.

16. Desertification should be declared a National emergency because desert encroachment continues to devastate vast arable land and threatens the whole nation gradually as the Sahara is moving southwards fast. A National Desertification Commission should be established. It shall benefit from the agricultural trust fund recommended above. We strongly support the immediate establishment of the Solid Minerals Areas Development Commission and the allotment to it of commensurate means to ameliorate problems of the devastation of the ecology, erosion all caused by flooding and the depletion of fishing and agricultural activities in these areas.  

Revenue Allocation and the Economy

17. There is need for a review of the revenue allocation formula in order to increase the share of the states and local government councils to facilitate the discharge of the additional responsibilities devolved to them. All revenue allocated from the Federation Account should be paid directly to the beneficiary Federal, State and Local Governments. Local Government Joint Accounts maintained by the States should be abolished or else some transparent rules be introduced to ensure accountability and participation of all stakeholders in the process of disbursement.

18.1 The derivation principle and other variables embodied in section 162 (2) which are to be taken into account by the NASS in the formulation of a law to regulate revenue allocation, should not be tampered with. We are not persuaded by and are unable to endorse the case made for any upward review of the amount due to States on grounds of derivation for the following reasons:

(a)           it is grossly unreasonable and inequitable

(b)            it fails to take into account the contribution Nigerians from all walks of life have, over the years, made and continue to make with their blood and toil to protect the territorial integrity of the nation, including the protection of the oil wells and other vital and strategic installations;

(c)           advocates of this position have easily forgotten and continue to ridicule and even belittle the incalculable material contributions made from the resources of other parts of the country to make the initial investment at the exploration stage which ultimately  led to the discovery of oil and its subsequent exploitation in these areas;

(d)             the argument which canvasses total control over natural resources is against existing laws, constitutional provisions in the country;

(e)           such an argument ignores universal practice by which it is the Nation State, and not the component units, which exercises absolute control over such natural resources. Such an argument have been used only selectively in pointing to the American practice, preferring to ignore the pervasive practice elsewhere, such as in Europe, South America, the Middle East etc.

(f)            while fairness demands it and we can relate well to and sympathize with the argument which canvasses the need to attend to the devastating ecological and environmental problems associated with the exploitation of oil and gas in these areas, those in authority in these areas, to whom billions have been paid on grounds of derivations on the basis of the current formula, have neither justified nor rendered satisfactory account in the way and manner they have deployed the funds made available to date. Rather than ask for more, we should all vow to hold such leaders accountable.

18.2 On the whole, we are convinced that the language embodied in the section referred to above, is flexible enough to accommodate any changes which may, in future, be considered desirable. Be that as it may, the Supreme Court Judgment which is to the effect that the boundary of all littoral States ends at Nigeria’s low-water marks and not extending to the continental shelf, must be respected and upheld for the purpose of derivation principle in the revenue allocation.  Any attempt to tamper with this provision by the Conference will amount to a contempt of court as the matter is pending before a court of law for determination. It will also violate Order III, Rule 3.12 of the Standing Orders of the Conference. 

19. The Federal Government should pursue the protocols and principles of ECOWAS, AU and NEPAD by ensuring the development of infrastructure such as the Transaharan Railway and Road network projects that will facilitate the integration of West Africa Sub-Region and the continent with the rest of the world. The River Niger should be dredged and the Inland waterways along the  River Benue and Niger Delta should also be developed. In concert with other members of the ECOWAS, Nigeria should pursue the desirable goal of the declaration of River Niger as international waterway. In pursuance of this objective, Nigeria and other member States of ECOWAS will enhance cross border trade, provide other less expensive means of transportation which will facilitate the movement of goods and persons and regional integration.

20. In order to foster economic balance between all sections in the country the National Economic Council, which is established by section 153 (1) (h) of the 1999 Constitution should be empowered to ensure participation of states in the formulation of fiscal and monetary policies of the Nation. Government should set-up a financial structure that would ensure full participation in all strategic investments by all parts of the country in accordance with geographical spread.

21. The privatization process should be revisited in order to ensure fairness and equity. The need for sequencing of the privatization process should be stressed. This will help in redeeming Nigeria’s image in the comity of nations.

Constitutional Ammendments

22.  Section 1 sub-section (1) on the Supremacy of the Constitution should be amended and read as follows: -  “If any other law, save Islamic Law is inconsistent with the provisions of this CONSTITUTION, this CONSTITUTION shall prevail and that other laws shall, to the extent of the inconsistency, be void”.

23. Similarly, the word “personal” in section 277 of the 1999 Constitution should be deleted to read Islamic Law. It should be recalled that 1979 Constitution was similarly amended in 1990 and 1995 Constitutions.

24. In addition, item 23 of part 1 of the second schedule of the 1999 Constitution should be amended to transfer “Evidence” to the Concurrent List. 

25. All the relevant Legal and Constitutional provisions on the federal character must be respected and in order to strengthen the Federal Character Commission, the Constitution should be amended to make it an independent body under the National Assembly just like the Public Accounts Committee. It should also be funded from the consolidated revenue fund.

THE FEDERAL ELECTORAL COMMISSION

26. The Constitution should be amended to rename INEC to become the Federal Electoral Commission and place it under the supervision of the National Judicial Council.

27. The Federal Electoral Commission should be funded from the consolidated revenue fund or from such other sources, as the NASS may deem appropriate and which will enhance its autonomy and independence.

28. Political parties should be afforded equitable representation in the Federal Electoral Commission based on their strength in the National Assembly. The parties should nominate Commissioners of the Federal Electoral Commission to the President for confirmation by the Senate.

29. A State Governor shall be empowered to nominate one person to the President for confirmation by the Senate as a resident Electoral Commissioner to be posted by the Commission to any State The political parties should formulate the framework for the establishment of the Federal Electoral Commission.

30. State Electoral Commissions should be under the supervision of the State Judicial Service Commission. Their mode of appointment should be based on the same principles as pertain to the appointment of members of the Federal Electoral Commission.

31. Members of the Electoral Commission should appoint a Chairman from amongst themselves. The Commission should be responsible for recruitment, promotion, discipline and training of its staff at all levels.

32. The Federal Electoral Commission shall be responsible for the compilation and periodic review of the register of voters, constituency delimitation, conduct of election etc. A provision should also be made whereby ballot papers can be made available for recounting in election petitions, if need be.

33. Legal backing should be given to the Election monitors to enhance their performance to assist properly in the conduct of free and fair elections in the country.

Police and Prisons

34. The command and control of the Nigeria Police should remain as per the provisions contained in the 1999 Constitution. The Composition of the Nigeria Police Force must reflect the Federal Character. The present serious and acute imbalance in the current composition of the Force must be addressed and corrected. Policing should be based on community understanding. There is a need to localize the recruitment and posting of the Police Force. In this regard, the Policemen between the rank of constable to the rank of ASP must be indigenes of the State. A deliberate five-year plan to implement this strategy should be formulated and pursued with vigour.

35. The quality and content of police training should be improved and the police academy should be of high academic standing.

36. The legal provision for categorization of prisoners according to age and seriousness of offence should be implemented. Facilities for the training of inmates should be improved and modernized. The Judiciary and the Executive should discharge their constitutional role of decongesting the prisons by ensuring speedy dispensation of justice and regular visits to the prisons to review the cases of offenders. There should be training and re-training of Prison officials so that they can appreciate the reformative rather than the punitive nature of their duty.

Civil Society

37. Civil Society Organizations are essential for the flourishing of democracy. We recommend th expansion of the political space for expressing dissent to policies. While we recognize the legitimate societal need to maintain law and order, we urge that that need be balanced with the democratic imperatives to facilitate peaceful demonstrations by political and civil society groups with minimum hindrance. Therefore, under no circumstances should the State be allowed to infringe on the rights of citizens to form associations and also assemble for civic interactions. However, they are expected to cooperate with the civil security agencies to ensure maintenance of public peace and order.

38. Government should encourage the participation of NGO’s in the affairs of the society by adhering to the relevant roles established by law for them, especially at the Local Government Council level where such organizations are expected to contribute towards engendering grass roots participation in good governance through various responsible roles such as participation in the statutory Alarm Committee that ensures accountability.

39. Non-Governmental Organizations should be discouraged from being the vanguard of alien cultures and political interest. They should rather be encouraged to propagate and promote the cherished values of our society. The authorities and their membership must also make them accountable and transparent, especially with reference to foreign funding by insisting that they publish their statements of account as required by law.     

1.   Alhaji. Magaji Dambatta, OFR                    Signed

2.   Mall. Sule Y. Hamma                        Signed

3.   Alhaji. Isyaku Umar Tofa                   Signed

4.   Alhaji M. T. Waziri                        Signed

5.   Prof. Auwalu H. Yadudu                          Signed

6.   Dr. Haruna M. Salihi                       Signed

Dated this 10th day of March 2005 (Muharram 30, 1426)