Third Term And The 1999 Nigerian Constitution.

INTRODUCTION

It is well established all over the world that democracy is the best form of government even though scholars and practitioners are not agreed on the definition, content and form of democracy. But there is agreement that the practice of democracy requires a legitimate constitutional framework. Unfortunately, since the Northern and Southern protectorates were amalgamated to form the territory now known as Nigeria in 1914, there has never been an inclusive dialogue process leading to a social compact or a legitimate constitution. Meanwhile, constitution making and reform is very important in any nation because the constitution is the fundamental law of the land, which contains the rules, conventions, and other practices by which a society governs itself. The constitution of a country is perhaps the most important instrument of governance since any other law or policy that is inconsistent with the provisions of the constitution is null and void and of no effect. 

It is therefore not surprising that since the beginning of the fourth republic in May, 1999, constitutional reform has been top of the agenda of civil society organizations, intergovernmental organizations, international organizations and the Federal Government. As a result several efforts have been made to bring about constitutional reform. Despite these attempts, a legitimate constitution has not been produced for the country at the end of 2005, six years and seven months into the fourth republic. However, the National assembly recently brought out a report for a possible amendment of the 1999 constitution. One of the suggestions is amendment of the constitution to extend the duration of tenure to maximum of three consecutive terms of four years each instead of the present situation of a maximum of two terms.

THE 1999 CONSTITUTION AND TENURE

The political history of Nigeria indicates that Nigeria has been ruled by the military for about 30 years in the 46 years of post independence Nigeria. As a result, apart from the 1960 and 1963 constitutions, all other constitutions are products of military rule (1979, 1989 and 1999). The 1999 constitution was promulgated into law as a decree by the Gen. Abdulsalami Abubakar regime. The constitution was approved by the Armed Forces Ruling Council following a report submitted by the Justice Niki Tobi Constitution Debate Coordinating Committee. The committee had only two months to consult Nigerians before presenting a draft to the military for approval. This is why the 1999 Constitution has been criticised by all sectors and shades of opinion in Nigeria as a military imposition. But beyond the process of making the 1999 Constitution which is essentially flawed, the content of the constitution leaves much to be desired and is not suited for deepening of democracy. It does not protect the rights of women adequately. There are no adequate provisions for independence of the electoral and other commissions. It is more unitary that a federal constitution. In response to all these, the executive arm of government, the legislature, civil society, intergovernmental organisations, international organisations and donor agencies have prioritized the reform of the 1999 constitution. There is some level of agreement in areas that need reform in the constitution although there are some contentious issues in the areas of religion, state police, affirmative action etc. However, one issue that has changed the pattern of the reform process is the issue of tenure regarding the agitation by some people for extension of the tenure of President Olusegun Obasanjo beyond the two terms that the constitution allows.

Section 135 of the 1999 constitution clearly provides tenure of four years for any person elected under the constitution as president and section 137 disqualifies any person who “has been elected to such office at any two previous elections.”  There are similar provisions for the office of the Governor in sections 180 and 182 of the 1999 constitutions. The supreme court of Nigeria has settled the matter of two previous elections clearly stating that it has to be two elections under the 1999 constitution. The 1999 elections and 2003 elections were held under the 1999 constitution and anyone elected as President and Governor in 1999 and 2003 are clearly disqualified by the 1999 constitution from contesting the 2007 elections. Therefore, President Obasanjo and Governors elected in 1999 and re-elected in 2003 are disqualified from contesting the 2007 elections.

CONSTITUTIONAL AMENDMENT: LEGALITY AND LEGITIMACY

There is only one way that President Obasanjo and other Governors elected in 1999 and re-elected in 2003  can contest the 2007 elections and that is amendment of the 1999 constitution. The procedure for amending the constitution is provided for in section 9 of the 1999 constitution which states that the proposal for amendment must be “supported by the votes of not less than two-thirds majority of all the members of that House (i.e. National Assembly) and approved by resolution of the Houses of Assembly of not less than two-thirds of all the states.”

In the current move to amend the 1999 constitution to allow President Obasanjo to contest the 2007 elections, three issues need to be borne in mind. First is that there is the tendency for African rulers to always want to remain in power. In the final analysis, they overstay their welcome and push their country into crisis or they are pushed out of power. Examples that pushed their countries into crisis include Gen. Abatcha of Nigeria, Mobutu Sese Seko of Zaire and Ferdinand Marcos of Philippines. Examples of those who are pushed out of power include Kenneth Kaunda of Zambia, F. Chiluba of Zambia, Arap Moi of Kenya and Yakubu Gowon of Nigeria. The basic problem with history is that human beings do not learn from history. We will see whether history will repeat itself in the case of Chief Olusegun Obasanjo of Nigeria and Yoweri Museveni of Uganda.

The second  issue is that even if all the political forces, arsenal and Tsunamis of the third term agenda succeed in amending the constitution to allow President Obasanjo to contest the 2007 elections, it will not make the process or the amended constitution legitimate. It may be legal in the same sense that when a people are conquered by military force and they issue decrees, the decrees are legal. But certainly, they are not legitimate. As results of various opinion polls and recommendation from interest groups have shown in Nigeria, such an amendment will be unpopular and will be resisted.

Finally and perhaps more importantly, the way that the third term issue is resolved will have a long lasting implication for the political stability, social cohesion and economic prosperity of Nigeria. It is discomforting that barely one year to the 2007 elections, there are no credible, popular and progressive candidates. Where are the Awolowos and Aminu Kanos? All the ones that have indicated interests are either guests or possible guests of the Economic and Financial Crimes Commission or they cannot venture to travel out of the country if not, they will be “dariyed” or “alamed”. This is the tragedy of the political class in Nigeria. The leadership of the opposition has been silent for six years offering no credible alternative to the present government. Recent political groupings under different platforms to challenge the third term agenda are renegades who fell out of favour with the regime. They do no offer any fresh ideas or inspiration to move the country forward. Meanwhile, there are honest, dedicated, committed, patriotic and progressive Nigerians in every sphere of life from all parts of the country and scattered abroad. The challenge is to organize and mobilize all progressive forces to rescue our nation from the parasitic, rapacious and unfocused ruling elite. History is on the side of progressive forces. We have nothing to loose but our chains. For evil to triumph is for good men and women to do nothing. The transformation of Nigeria is not just a mere possibility but an imperative.