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Constitution Making and the Struggle for Resource Control in Nigeria

By

Otive Igbuzor

igbuzor@cddnig.org  

PREAMBLE

The problem of making an acceptable and legitimate constitution and sharing of the revenue of the federation of Nigeria have dominated the political landscape for a very long time. In this paper, we give a historical account of constitution making in Nigeria showing how women have been marginalized within that history. The paper also highlights the problems with the 1999 constitution, operation of fiscal federalism and gives a critique of the ongoing constitutional review exercise. The paper argues that the history of constitution making in Nigeria shows that control/allocation of resources is a constitutional issue. Therefore, any struggle for resource control must of necessity include the struggle for constitutional reform.

The paper is divided into seven parts. The first part clarifies the concepts of constitution, constitutionalism, constitution making, federalism, fiscal federalism and resource control. The second part traces the history of constitution making in Nigeria from the colonial era till date while the third part locates the marginalisation of women within that history. The fourth part gives an overview of the problems with the 1999 constitution and the fifth part gives a critique of the ongoing review process particularly with regards to the work of the Presidential Committee on the review of the Constitution and the National Assembly. The sixth part of the paper analyses the operation of fiscal federalism in Nigeria while part seven chronicles the struggle for resource control in Nigeria. The eighth part gives the position of Citizens Forum on Constitutional Reform (CFCR) on resource control while the final part concludes the paper with recommendations.

1. CONCEPTUAL CLARIFICATIONS

The concepts of constitution, constitutionalism, constitution making and resource control have assumed great prominence and importance in recent times in Nigeria. Constitution has been defined in various ways. A Constitution has been defined as the embodiment of all the political, economic, social, cultural, religious and even historical forces conditioning the perception of a people at any given time and powerful enough to be isolated and accepted as a guide for future action (Okoli and Okoli,1990). The constitution is a collection of norms and standards according to which a country is governed (Anifowose, 1999).  A Constitution has also been defined as the totality of the rules and regulations, both legal and non-legal which ordain, order, regulate and sustain the government of a given country (Bagehot,1949). Others define a constitution as a set of principles, fundamental rules and practices of government, written and unwritten, which establishes the major organs of government, allocates to them their powers, defines the rights of the citizens and the relations between them and the state. Another popular definition is that which defines a constitution as the basic or fundamental law of the land, which contains the rules, conventions, and other practices by which a society governs itself.

According to Justice Albie Sachs of South Africa, constitution is the autobiography of a nation (I-IDEA, 2000). The report of the Presidential Committee on the Review of the 1999 Constitution defines a constitution as the body of rules in accordance with which the powers of Government are distributed and exercised. (P1). A constitution has also been described as a contract, which describes the conditions under which the peoples of a nation coexist (I-IDEA, 2000)

From the above definitions, it is clear that a constitution may contain rules about how those who govern are to be selected or changed, how they are to behave in office and the relationship between the organs of government.  It also shows the relationship between the government and the citizens and even amongst the citizens. The importance of constitution in a country cannot be overemphasized. As Georges Bidault noted, “the good or bad fortune of a nation depends on three factors: Its constitution, the way the constitution is made to work and the respect it inspires”.

Constitutionalism can be defined as adherence to the letter and spirit of the constitution.  It upholds the supremacy of the constitution and requires that government officials must obey and operate within the framework of the law. It is important that a country should not only have a good constitution but that the principles of constitutionalism are adhered to. As Okoth-Ogendo has argued, for the past four decades in Africa, there appears to be a commitment to the idea of constitution but at the same time, there is a rejection of the classical notion of constitutionalism (Okoth-Ogendo,1991). In any case, constitutionalism has to be understood in the context of power relations (Mandaza, 1991). Scholars have argued that there is a new concept of constitutionalism, which should rest on accountable/responsive state and collective rights and freedoms (Shivji, 1991).

It has also been argued that this new constitutionalism has become an integral part of the African political reform process (Ihonvbere, 2000). According to Ihonvbere, this new trend in constitutionalism has been encouraged by several factors. First, there is an increased support for democratisation  and civil society by sub-regional, continental and international organisations such as the Economic Community of West African states (ECOWAS), the Southern Africa Development Community(SADC), the Organisation of African Unity(OAU), the Commonwealth, the European Union(EU) and the United Nations. Secondly, there is a new acknowledgement all over Africa of the salience of pluralism and its centrality to the democratic process. Thirdly, new coalitions and networks are emerging all over Africa as platforms for training new leaders, demystifying dictatorships, and articulating alternative agendas for democratisation. Furthermore, at the end of the cold war, there are no more superpowers that use all the resources at their disposal to maintain unpopular and illegitimate regimes. Moreover, there appears to be a consensus all over the world that military regimes are not only aberration and unacceptable but must be resisted. Recently, the Assembly of the Heads of State of the OAU decided that they would not admit military rulers in their meetings. The Centre for Democracy and Development aptly captured the new trend when it stated:

At every level on the continent, the idea has taken root that the Leviathans of Africa must no longer function as “virtual democracies” but must be refashioned to reflect the realities of their multifaceted societies. This has been reflected in the constitutional Conferences in Benin, Mali, Togo, Niger, the Democratic Republic of the Congo, and Cameroun in the early 1990s, in the successful constitutional arrangement of South Africa, and in the process-based constitutional commissions in Uganda and Eritrea……..Today, the struggle for constitutional reform in Kenya, Tanzania, Zimbabwe and Nigeria typifies the second liberation/independence struggle in the continent. The struggle has been led predominantly by civil society in Africa, since the political parties have proved either incapable or unwilling to push for constitutions that will promote just and equitable societies, being instead distracted by a chance to exercise power” (CDD, 2000:33-34)

A peoples constitution is a constitution made by the people. The people not only participate in the process of making a peoples constitution but the content reflects the history, wishes and aspirations of the people.

The importance of constitution in the governance of any nation cannot be overemphasized. The link between democracy and constitutional government is well established. It has been pointed out that although democracy is not dependent on the existence of a written set of rules in a constitution, without a constitution, there may not be practices conducive to efficiency, well being and social justice (1-IDEA, 2000) Constitution making and/or review is therefore of paramount importance in any country.

The concept of resource control in Nigeria can be better appreciated within the context of federalism and fiscal federalism. The concept of federalism has attracted the attention of scholars, political activists, politicians and public affairs commentators over the years. It has been noted that federalism did not begin as a concept of social and political organization evolved by reflective philosophers or postulated by didactic political scientists (Ramphal, 1979). The earliest most profound theoretical exposition is probably the 85 essays that appeared in 1788 under the now famous title “the Federalist”. These essays were actually written in defence and support of the 1787 constitution of the United States. In any case, the discussion of contemporary federalism normally starts with K.C. Wheare who stressed the formal division of powers between levels of government. According to him, the federal principles include the following:  

1. The division of powers among levels of government  

2. Written constitutions showing this division, and  

3. Coordinate supremacy of the two levels of government with regards to their respective functions (Wheare, 1943 34.)  

Wheare’s formulation has been criticized as being too narrow and legalistic. A scholar, William Livingstone suggest a process approach which points to the phenomenon of intergovernmental cooperation that cuts across and formal constitutional division of powers. According to him,  

The essential nature of federalism is to be sought for, not in shading of Legal and constitutional terminology but in the forces-economic, social, political, cultural-that have made the outward forms of Federalism necessary ................. The essence of Federalism lies not in the constitutional or institutional structure but in the society itself. Federal government is a device by which the Federal qualities of the society are articulated and protected. (Livingstone, 1956:1-2).  

Livingstone distinguished between a federal constitution, which is the legal document, and a Federal Society, which is characterized by historical, cultural and linguistic background and geographical location. According to Ramphal, the broad patterns of classical federalism include:

1. The need for a supreme written constitution.

2. A predetermined distribution of authority between federal and state governments.

3. An amending process, which allows revision of the federal compact but by neither the federal government nor the state government acting alone.  

4. A supreme court exercising powers of judicial review.  

5. Some measure of financial self-sufficiency (Ramphal, 1979).  

From the above, three things are clear. First is that constitutional specification is the starting point of any federal arrangement. Secondly, economic, social, political and cultural factors determine and affect the nature of any federal system. Thirdly, federalism is a concept for promoting unity in diversity and has to be worked upon by the country to reflect economic, social, cultural and historical reality.

Fiscal federalism simply means the division of resources among the tiers of government in a federal system (Federal, State and Local government in Nigeria). In a federal system, there is the constitutional division of powers, functions and resources among the central, state and local governments. There are principles that guide fiscal federalism. Ndubuisi (1996) has outlined six principles that should guide the operation of federal finance. These principles include:  

1. Independence and Responsibility - The respective tiers of government should not only be autonomous in their resources but such resources should be enough to carry out their autonomous functions.  

2. Adequacy and Elasticity - The principle of adequacy means that the resources of the government should be adequate so that each government discharges its obligation. Elasticity implies the expansion of resources in response to rapidly growing needs and responsibilities of the government concerned.  

3. Administrative Economy and Efficiency - The administrative cost should be minimum and there should be no frauds and evasions in matter of finance.  

4. Accountability - Every layer of government should be accountable to their legislature.  

5. Uniformity - The financial system should be such that every government in the system should provide adequate level of public service without resort to higher rates of taxation than other states.  

6. Fiscal Access - Every state should have the authority to develop their resource of revenue within their own ambit. (Ndubuisi, 1996).  

The term resource control is of recent origin in Nigerian discourse. Some scholars erroneously attribute the term to “Southern Governors particularly Governor James Ibori of Delta State” (Sagay 2001:19). This is very wrong. The terminology has been in use by the Movement for the survival of Ogoni people (MOSOP), Environmental Rights Action (ERA), Institute of Human Rights and Humanitarian law and the Kaiama declaration even before the Governors were elected. Sagay gave a comprehensive description of resource control. According to him, it has three major components:-

1. The power and right of a community or state to raise funds by way of taxation on persons, matters, services and materials within its territory.  

2. The exclusive right to the ownership and control of resources, both natural and created within its territory, and  

3. The right to customs duties on goods destined for its territory and excise duties on goods manufactured in its territory. (Sagay, 2001: 19).  

We endorse Sagay’s conceptualization. However, the most important issue with regard to resource control in Nigeria is the ownership and control of mineral resources.

2. HISTORY OF CONSTITUTION MAKING IN NIGERIA

In Nigeria, there have been at least ten attempts to make or review the constitution of the country. We shall divide the attempts in constitution making in Nigeria into two major phases: Colonial era (1861-1960) and postcolonial era (1960-2002).

COLONIAL ERA (1861-1960)

During the period of the ninety-nine years of British rule in Nigeria, there were at least six major constitution-making experiences. These include the amalgamation constitution of 1914, the Clifford Constitution of 1922, Richards Constitution of 1946, Macpherson constitution of 1951, Lyttleton Constitution of 1954 and independence constitution of 1960. It has been documented that modern Nigeria was brought into one political fold between 1861 and 1914 through a combination of force and cunning by the British (Political Bureau, 1987). This was finally actualized by the amalgamation of Northern and Southern protectorates in 1914. According to Momoh, the amalgamation of 1914 was executed through three different constitutional instruments, all of which were made under the authority of the colonial office in London (Momoh, 2000). This led to the setting up of the Nigerian Council consisting of 36 members i.e. the Governor, members of the Executive Council, the first class residents, political secretaries of the Northern and Southern provinces as officials, seven Europeans representing various interests like the chambers of commerce, shipping, banking and mining business and six Nigerians nominated by the governor as unofficial. It has been documented that the six Nigerians consisted of two emirs from the North, the Alaafin of Oyo and one member each from Lagos, Calabar and Benin-Warri area(Dare and Oyewole, 1987).

In 1917 in the former Gold Coast (now Ghana), some intellectuals came together under the leadership of a lawyer Mr. Casely Hayford and formed the National Congress of British West Africa to struggle for the independence of the Gambia, Sierra Leone, the Gold Coast and Nigeria. In 1920, they sent a delegation to London asking for among other things legislative councils in all British West African territories and a West African House of Assembly. This and other pressures led to the enactment of the Clifford Constitution of 1922 by the then Governor, Sir High Clifford. The Clifford constitution created a legislative council of forty-six members, 27 of whom were officials including the Governor and 19 unofficial members. Of the unofficial members, fifteen were nominated by the Governor and only four were elected, three from Lagos and one from Calabar (Dare and Oyewole,1987). This was however the first time that Nigerians elected their representatives.

During the Second World War, the struggle for independence and self-determination increased in tempo. In Nigeria, nationalists advocated for a new constitution. As a result, on March 6, 1945, Governor Sir Arthur Richards presented the legislative council with his proposals for a new constitution, which became known as the Richards Constitution of 1946. Under the Richards Constitution, there was a legislative council for the whole country composed of the Governor as President, sixteen official members and twenty-eight unofficial members. Among the unofficial members, four of them were elected while twenty-four were nominated. The Constitution also created regional councils for the western, Eastern and Northern regions. The eastern and western regional councils were unicameral while the Northern regional council was bicameral- a house of chiefs and house of assembly. It has been noted that the regional councils did not have legislative powers (Dare and Oyewole, 1987). They were only advisory bodies and the Governor was not bound to accept their recommendations. The promulgation of the Richards constitution angered many Nigerians because the Governor did not consult with the people before the constitution was enacted. In fact, the Governor justified the exclusion of Nigerians in the constitution making process by claiming that there was “an absence of any group from which he could obtain African views” (Coleman, 1958). This made the people to reject the constitution. The opposition to the constitution was immediate and total. Meanwhile, the Governor Sir Arthur Richard left the country a year after the constitution was enacted. The new Governor Sir John Macpherson had no option but to initiate fresh constitutional reforms. Learning from the experience of his predecessor, the making of the Macpherson constitution was preceded by a lot of consultation from the ward through the village, district and regional levels to the national level. A national conference was held on 9^th January 1950 at Ibadan to discuss the draft before it became operative in 1951. The Macpherson constitution provided for a central legislature and a central executive council. The legislative arm known as House of Representatives consisted of a president, six ex-officio members, 136 representative members elected from the regional Houses and 6 special members appointed by the governor to represent interest and communities that were inadequately represented. The constitution also provided for a regional legislature and a regional executive. In the North and the West, the regional legislatures were bicameral (made up of two chambers known as House of Chiefs and the House of Assembly but in the East, there was only one chamber, the House of Assembly. It is important to note that the power of the central legislature was unlimited and it could legislate on any matter including those on which the regions had power to legislate (Dare and Oyewole, 1987).

Despite the wide consultation that went into the making of the Macpherson constitution, it had a major defect. According to the provisions of the constitution, central ministers were to be selected from among the members of regional legislatures. This made the ministers to feel loyal to their regions rather than the center leading to inter-regional frictions. This led to the constitutional conference in London in 1953 and later in Lagos in 1954, which informed the enactment of the Lyttleton constitution of 1954 under the governorship of Mr. Oliver Lyttleton. In preparation for independence, two constitutional conferences were held in London (1957) and Lagos (1958). All these made input into the making of the 1960 independence constitution.

From the above, it is clear that constitution making or review during the colonial era in Nigeria was motivated by agitation form nationalists. Nationalists were the driving forces for constitutional reform in colonial Nigeria. However, they did not participate in the actual drafting or approval of the constitutions.

POST COLONIAL ERA (1960-2002)

The independence constitution of 1960 retained most of the provisions of the Lyttleton constitution. The Queen of England remained Nigeria’s constitutional monarch only represented by the Governor General. The final court of Appeal for Nigeria was the Judicial Committee of the British Privy Council. These provisions, which, were still applicable in “independent” Nigeria, led to agitation for change. This culminated in a constitutional conference held in Lagos from 25^th –26^th July 1963 where Nigerian political leaders resolved that Nigeria should become a Federal Republic. The republican constitution of 1963 was therefore passed into law by the Federal parliament on 19^th September 1963. The constitution came into force on 1^st October 1963. By the republican constitution, the Queen of England ceased to be Head of State of Nigeria and the Supreme Court of Nigeria became the final court of appeal.

On 15^th January 1966, the military took over government. In September 1975, the military Government of Gen. Murtala Mohammed set up a constitution drafting committee made up of 50 appointed members with Chief F.R.A Williams as chairman. All the members were men. One of the appointed members (Chief Obafemi Awolowo) declined to serve on the committee and so only 49 “ wise men” produced the draft constitution. The draft was debated by a constituent assembly of elected and nominated members. The government appointed the chairman, Deputy Chairman and secretary of the Constituent Assembly. The work of the constituent Assembly was reviewed and amended by the Supreme Military Council (SMC) that issued a decree to enact the 1979 Constitution.

The Ibrahim Babangida regime set up a political bureau, which produced a draft document that was tabled before a constituent Assembly. The draft of the 1989 constitution was debated by the constituent Assembly with one-third of its members appointed by the military regime.

The Abacha regime inaugurated a constitutional conference in 1994 with over one-third of the membership appointed by the military regime. Meanwhile, the election into the constituent Assembly was widely boycotted. The constituent Assembly has been described as the most unpopular assembly in Nigeria’s history. Out of a voting population estimated at 30 Million, less than 350 people bothered to vote. The rest either stayed away in protest or were completely indifferent. Not only that, one third of the total membership of the conference were hand picked nominees of the Abacha junta-most of whom were economic vampires and political charlatans… (Quoted in Obayuwana, 2000:74) Jega has argued that “the regime effectively used its control of the technical/ executive committee of the constitutional conference to literally alter decisions arrived at on the floor of the conference” (Jega, 2000). After the constitutional conference submitted its report, the regime appointed another constitution review committee made up of about 40 persons to review the report. The committee finished its report in 1997 but as at the time Abatcha died in June, 1998, no official report has been released. In any case, after his death, it was speculated that there were many versions of the constitution.

On 11^th November 1998, Gen Abdulsalami Abubakar inaugurated the constitution debate coordinating committee made up of 25 members headed by Justice Niki Tobi. The committee was asked to submit its report by December 31^st, 1998. The committee submitted its report and the Armed Forces Ruling Council promulgated the 1999 constitution a few days to the handing over of power to a civilian regime on 29^th may, 1999.

From the above, it can be seen that constitution making in postcolonial Nigeria has been dominated almost entirely by the military. Apart from a minor amendment to the 1960 constitution in 1963, all constitution making review activities in Nigeria have been done by the military. It has been argued that there is an “intrinsically contradictory relationship between the military and democracy” (Momoh and Said, 1999). The military is therefore not capable of engineering a constitution that will ensure a durable democracy.

3. CONSTITUTIONAL MARGINALIZATION OF WOMEN IN NIGERIA.

It has been documented that constitution making in Nigeria has persistently excluded female legitimacy (Ezeilo 2000). This exclusion dates back to the colonial times when women were not allowed to vote. The Clifford constitution of 1922 restricted the electorate to adult males in Calabar and Lagos who have been resident in the city for at least one year and had a gross annual income of N100.00. The Richard constitution of 1946 only reduced the property qualification to N50.00. The Macpherson constitution removed property qualification but still restricted the electorate to only adult males who pay their taxes. By the Lyttleton constitution of 1954, franchise was universal in the East and West but limited to adult males in the North. In fact, it was not until 1979 before the right to vote was extended to all Nigerian women.

The 1999 constitution was promulgated into law by the Armed Forces Ruling Council of General Abdusalami Abubakar regime. The AFRC was made up of 26 military officers, all males. The language of the constitution is in masculine gender. The constitution not only continues the marginalization of women but also actively discriminates against women particularly on citizenship.

The 1999 constitution became operative on 29^th May 1999. Despite the fact that women make up at least 49.6 percent of the nations total population (1991 census), less than 2 percent of top positions are occupied by women. There are only 3 female senators in a house of 109 members and only 9 women chairperson of local government area out of 774.

For development to take place, it is crucial that as many people as possible should participate in the development process. Affirmative action is therefore needed in Nigeria to increase the contribution of women to national development. Meanwhile, the idea that affirmative action for women is necessary is already gaining ground in Nigeria. There is a senate resolution that at least 30 percent of either gender should constitute all public appointments in Nigeria. The National policy on women has endorsed affirmative action. According to the policy, “affirmative action of proportionate ratio or 30 percent representation will be employed to increase the total representative seats in each of the legislative houses, executive arm, party hierarchy and structure shall be reserved for women for a trial period up to the years 2010” (National Policy on Women P.37).

Despite the provision for affirmative action in these documents, it is our considered opinion that appointments will continue to be made without respect to these provisions unless affirmative action is entrenched in the constitution.

PROBLEMS WITH THE 1999 CONSTITUTION

There are problems with the process of making the 1999 constitution as well as the content of the constitution. The constitution was made during a military regime. The constitution was approved by the Armed Forces Ruling Council made up of 26 persons all males. The people did not participate in the process of making the constitution. This is why the preamble which begins with “WE THE PEOPLE of the Federal Republic of Nigeria…do hereby make, enact and give to ourselves the following constitution” has been severely criticised in Nigeria as being a false claim (Kuye, 2001). This is why we can say that although the 1999 constitution is a legal document, it is certainly not legitimate.

The content of the 1999 constitution does not take into account the political history of the country. In addition there are a lot of inconsistencies and provisions that do not meet the wishes and aspirations of the people. A few examples will illustrate this point. First and foremost, the history of Nigeria shows that it is a federal system. But the constitution is very unitary. There is over concentration of powers at the centre. The constitution establishes a judicial council to control the appointment, promotion and discipline of both state and federal judicial officers. Secondly, the language of the constitution is problematic in two respects. It is written in masculine gender as if there are no women in Nigeria. Again, it is written in legal jargons that are very difficult to understand. The trend today is to write constitution in a simple language that the average person can understand. Thirdly, the constitution does not guarantee economic, social and cultural rights. Provisions for adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, unemployment and sick benefits and welfare of the disabled are provided for under chapter two titled fundamental objectives and directive principles of state policy. These provisions are not justiceable under the 1999 constitution and cannot be enforced. Meanwhile, these are the issues on which majority of Nigerians want priority attention. Fourthly, there is a lot of inelegant drafting. For instance, section 222 dealing with the registration of political parties gives the impression that political parties only need to register with the Independent National Electoral Commission (INEC) but Section 40 gives the proviso that INEC will have to accord recognition to the parties. Another example of inelegant drafting is Section 156, which prescribes the same qualifications for members of Federal executive bodies of which INEC is one and members of the House of Representatives. Meanwhile, Section 65 gives membership of political parties as one of the qualifications for becoming a member of the House of Representatives. This means that members of INEC charged with the responsibility of organising and supervising elections in the country must be members of political parties. We do not think that this is the intention of the constitution.

 Moreover, the 1999 constitution not only continues the marginilisation of women but also discriminates against women. There is no specific equality clause. There is no affirmative action clause. Whereas Section 26 makes it possible for any man to confer citizenship on his foreign spouse by registration, the same right is not extended to women. In addition, the constitution does not provide a liberal regime for political parties to operate. Finally, the constitution vests all the resources in the country on the federal government. There is no doubt that this is a negation of the principles of fiscal federalism. We cannot but agree with Ihonvbere when he argued that “ the 1999 constitution failed to address in its entirety the character of the state; the nature of the custodians of state power; the critical issue of hegemony and the inability of the elite to initiate a national project; the national question, production and exchange relations; and other primordially determined or constructed identity questions.(Ihonvbere, 2000)

5. A CRITIQUE OF THE REVIEW PROCESS OF THE 1999 CONSTITUTION

When the present civilian regime was inaugurated in May, 1999, it had no choice but to operate the 1999 constitution promulgated through Decree No. 24 of May 5, 1999. The majority of Nigerians are unanimous that the 1999 constitution is illegitimate, an imposition and defective in many areas.

In response to the criticisms, the Federal Government inaugurated the Presidential Committee on the Review of the 1999 constitution on 19^th October 1999. In February 2001, the committee submitted its report to the President. Between  30^th April, and 29^th May, 2001, the zonal presentations were made in the six geo-political zones of the country. The report was presented in two volumes-Volumes 1 and 11.

The report stated that the committee received about two million written memoranda and one and half million oral presentations. An analysis of the report will show that it is a bundle of contradictions and subversion of the will of the people as enunciated in their submissions. In the preamble to the report, it acknowledged, “Nigeria has never had a really participatory or people driven constitution making approach”(pp1-2, Vol.1). There is no doubt that all Nigerians will agree with this position. A careful reading of the report will show that the report captured correctly the mood, presentations and positions of Nigerians regarding various contentious issues but refused to make the recommendations that will amend the constitution along those lines.

On   revenue allocation, Derivation and Resource control, the report stated, “the derivation principle or formula from natural resources was accordingly rejected in several parts of the federation in preference for a return to fiscal federalism principle under which federating states (or regions under the 1963 constitution) owned, controlled and developed the natural resources which were located on their land” (P43, Vol.1). The report further stated that “The twin issues of Derivation formula and resource control stand out and constitute the greatest test of the political will of the constitution review process to effect the desired restructuring of the Nigerian Federation so that justice is done to all stakeholders in the Nigerian Nation” (p43, Vol. 1). Now, what is the recommendation of the committee to address this issue? The committee recommended that the derivation formula as contained in section 162(2) of the 1999 constitution be increased substantially beyond the 13 percent minimum (p44, Vol.1). Meanwhile, in its proposed bill for amendment in volume 2 of its report, Section 162(2) was lifted verbatim as Section 169(2) of the proposed amended constitution without increasing the derivation percentage beyond 13 percent. This is fraudulent!

On the Land Use Act, the report states that “ One of the most controversial pieces of legislation in Nigeria today is the Land Use Decree of 1978 which sought to harmonize the various Land Tenure systems in the country and thereby ease the acquisition of land for public purposes”(p64, Vol. 1). The report further stated, “The preponderant view in several parts of the country was that the Land Use Act was unduly oppressive and had in fact outlived its usefulness. Nigerians argued that it was mischievous of Government to have tied the Act with the constitution in the belief that it will ease the wrongful appropriation of the land, which naturally belonged to the people. They maintained that the right of the people to ownership of land was an inalienable right which government could not, by any pretentious trusteeship, take away from the people. The promulgation of the Land Use Act was therefore seen as an anti-people and undemocratic action by the military Government (pp64-65, Vol.1). But what did the committee recommend? The committee recommended that the status quo as provided in Section 315(5) of the 1999 constitution be maintained.

It is instructive to note that the committee submitted its report to the President in February 2001. Between 30^th April and 29^th May 2001, the Zonal presentation or the reports were made. The government then called on civil society organization’s to discuss the report till December 2001. Up till now (July, 2002), nothing concrete has been heard from government. As a matter of fact, the political class has abandoned the constitution review project. They are now preoccupied on how to get elected or re-elected in 2003.

The National Assembly has also set up a 72-member committee on the review of the 1999 constitution with the deputy senate President as chair. In our view, the level of consultation of the national Assembly committee is less than that of the presidential committee. We therefore do not expect any fundamental impact of their work.

We have argued elsewhere that constitution making experience in Africa show that there are two distinct strategies, which we called the old and new approach.  

In the old approach, government appoints or stage manages the election of a constituent assembly, parliamentary committee, technical committee, special task force or select committee of conservative lawyers and politicians to write a constitution for the country. The process of the old approach ensures that there is little or no debate, no consultation with ordinary people and no referendum on the draft constitution before it is decreed or passed into law. Even if the process allows some limited debate, the result is predetermined and manipulated and not informed by the logic and content of the debate. The old approach inevitably leads to imposed or authoritarian constitution(Ihonvbere,2000:42). The new approach is a process led and participatory approach that puts a lot of premium on dialogue, debate, consultation and participation. It is guided by principles which include among others inclusivity, diversity, participation, transparency and opennes, autonomy, accountability and legitimacy (Citizens Forum for Constitutional Reform, 2001:2-4). Inclusivity means that all voices and opinions including those of minority groups should be heard and reflected. Efforts must be made to bring in the views and concerns of people from all works of life.  Every identifiable community should be invited, assisted and encouraged to participate in the review process.  Nationality groups, women, students, the armed forces, the illiterate, the disabled, the poor, the rural dwellers, the youth, professions, trade unions, religious groups, traditional rulers, community organisations, prisoners, human rights organisations, pro-democracy groups, political parties, cultural organisations etc. should be involved to say what they  will like to see in the constitution. Diversity entails that the Committee charged with the review process and the process itself must reflect existing diversity in terms of ethnic identity, language, religion and gender.  It is the responsibility of the country’s leadership and those leading the process to ensure that this diversity is reflected.  If this diversity is not reflected, the final document cannot claim to be democratic, legitimate and reflective of popular view. The principle of Participation requires that the process must take on board the involvement of people at all levels in debating freely the content of the constitution.  Every effort must be made to ensure that people participate in the process. Participation by the people is crucial because if the people do not participate, both the process and the final document will be useless and irrelevant to democratic renewal that is so badly needed in the country.  It is necessary that the people not only participate in the process but also should have easy access to the process and the final constitution; understand it and use it in the defence of their individual and collective rights. The principle of participation is pivotal because the centrality of constitution to the democratic process is increasingly being recognised by scholars, activists and governments all over the world. Transparency and Openness requires that the process must be transparent and open and must be seen by all to be so. To ensure transparency and openness, all submission made to the review panel; analysis of the submissions and the draft constitution should be filed, annotated, published and circulated widely.  Furthermore, anyone who submits a memorandum should be acknowledged and drafts and final copy of the constitution sent to him/her. Another basic principle is autonomy. The body charged with leading the review process must be autonomous and independent from government control.  It should not be tied to the whims and caprices of any arm of government. Furthermore, the final document to emerge from the process must not be tampered with by the government, and the process must be seen to be free from government control. In addition, the body charged with the responsibility of reviewing the constitution must be accountable to parliament and the people.  There should be periodic publication of report and progress of work in an open and transparent manner. Finally, the process should be guided by the principle of legitimacy. A national referendum should be conducted to test the popularity of the draft constitution.  The minimum vote for approval should be 51% of “yes” votes.  The referendum will further popularise the contents of the constitution and give the people the opportunity to review the draft constitution and be sure that politicians have not eliminated their collective views. Apart from the principles outlined above, the new approach utilises diverse mechanisms such as appointment of an independent commission to direct the process, elaborate public enlightenment and civic education and in built mechanism for making the people of the country to claim ownership and authorship of the constitution. (Igbuzor), 2001

It is clear that the approach being used by government in Nigeria is the old approach. Meanwhile, scholars are in agreement that Nigerians want an inclusive, consultative and participatory process, that is the new approach, in which the composite parts of the whole called Nigeria, can be examined as equals and partners in the process of nation building and existence (I-IDEA, 2000)

6. FISCAL FEDERALISM IN NIGERIA

In any Federal state, a formula is usually devised to share the revenue of the federation between the federal government and the governments of the component units on the one hand and among the governments of the component units on the other (Oyovbaire, 1991). A large body of literature exists on Nigeria’s fiscal federalism, particularly with reference to revenue allocation. It has been argued that the discordance between fiscal capacity of the various levels of government and their expenditure responsibilities is a striking feature of Nigerian Federal finance. There has always been controversy on the appropriate formula that should be used to divide resources in Nigeria. Various commissions have been set up to work out acceptable and equitable revenue allocation formula for the country. The commissions include:  

1. The Phillipson commission of 1946  

2. The Chicks -Phillipson commission of 1951  

3. The Chicks commission of 1953  

4. The Raisman Commission of 1958  

5. The Binns Commission of 1964  

6. The Dina Interim Revenue Ailocation committee of 1968  

7. The Aboyade Technical Committee of 1977  

8. The Okigho Presidential Commission of 1979  

9. The T.Y Danjuma Fiscal Commission of 1988  

A participant at the CFCR colloquium on Fiscal Federalism argued that the position of the various commissions tend to shift to suit particular constituencies and that their analyses are not informed by logic but preconceived self or sectional interests ratioinalised and justified by theories (CFCR Report on Fiscal Federalism Colloquium).

An analysis of fiscal federalism in postcolonial Nigeria would reveal two distinct phases: the phase before military rule and the phase after the military take over in 1966. During the first republic (1960- 1966), the revenue of the country was distributed based on derivation principle.  50 percent of the revenue from mineral resources was given    to the region from where the minerals were extracted. Another 30 percent was put in a distributable pool, which is divided among all the regions including the producing region. Only 20 percent went to the Federal Government. The military took over power in 1966, which was followed by a 30 month civil war. Most of the oil producing communities was in the Republic of Biafra that was declared by then Col. Emeka Odumegwu Ojukwu. In 1969, when the Federal Military Government had successfully “liberated” the oil producing communities, it promulgated the petroleum Decree (No 51) of 1969 that vested all the lands and the resources in, under or upon the Land on the Federal Military Government. There is no doubt that the Federal Government has continued with this war strategy on the Niger Delta people till date.

The data provided in the table below shows graphically how the change occurred with the war strategy on the Niger Delta People.

Table 1: Federal - State percentage share in petroleum proceeds

Source: Sagay, 2001

In his analysis, Sagay argued that:

“Even a superficial political analysis of the situation will reveal that the fate of the mineral resources of the Niger Delta minorities particularly the trend from derivation to Federal Government absolutism, is itself a function of majority control of the Federal Government apparatus. In 1960, there were no petroleum resources of any significance. The main income earning exports were cocoa (Yoruba West) groundnuts, cotton and hides and skin (Hausa /Fulani) and palm oil (Ibo East). Therefore, it was convenient for these majority groups usually in control of the Federal Government to emphasize derivation, hence its strong showing in the 1960/63 constitutions. However, by 1967 and certainly by 1969, petroleum, particularly the mineral oil, was becoming the major resource in terms of total income and foreign exchange earnings in the country. It was therefore, not difficult for the majority groups in the Federal Government to reverse the basis of revenue allocation with regard to petroleum resources from derivations to Federal Government exclusive ownership. They were in control of the Federal Government and their control of the mineral resources by virtue of that fact effectively means that the resources of the Niger Delta were being transferred to the majority group in control for the Federal Government at any point in time. Again, these oppressive measures are not the results of accidents or errors. They are deliberate acts of policy implementation founded in the belief that the owners of the petroleum resources being minorities can be deprived of their resources without any consequence. This is the attitude and mentality that led a senior Federal permanent secretary in a memorandum concerning Federal expropriation of the resources of the Niger Delta to make the following Freudian Slip, some years ago: “Given however the small size and population of oil producing areas, it is not cynical to observe that even if the resentments of the oil producing states continued, they cannot threaten the stability of the country nor affect its continued development” (quoted in lyayi 2002).

We cannot but agree with the analysis and position of Professor ltse Sagay. It is important to note that even the meager allocation while implementing the war strategy against the Niger Delta people was not even given to them. This can be seen graphically from allocation to OMPADEC, which was created to develop the Niger Delta in 1992. Table two below shows the expected and actual allocation to OMPADEC from 1992 -1996.

Table 2. Allocation to OMPADEC (1992 -1996)

Source: Horsfall (2000:53)

As lyayi has analyzed, between 1992 and 1996, the commission received less than 12 percent of the funds due to it from the 3 percent derivation fund. Whereas the commission was allocated about N86.4 billion for the period, it actually received NIO.9 billion” (lyayi, 2002:5)

7. THE STRUGGLE FOR RESOURCE CONTROL

It has been documented that the plundering of the resources of the Niger Delta people and their struggle against exploitation, environmental degradation and control of their resources dates back to the slave trade era in the sixteenth century (Okonta and Douglas, 2001). This continued into the colonial era up till date. However, the publicity and tempo of the struggle increased with the formation of the Movement for the survival of Ogoni people (MOSOP) in August, 1990. In October, 1990, the Ogoni Bill of Rights was presented to the Nigerian government and people. The Ogoni Bill of Rights among other things demanded for the right to use a fair Proportion of the economic resources in Ogoni land for its development and the right to control their environment. In October, 1999, the movement for the survival of the lzon Ethnic Nationality (MOSIEND) was formed. They presented the lzon people charter which among other things demanded for the right of the ljaw to control their natural resources. On December 11, 1998, the ljaw Youth council was established and the famous Kaiama declaration was made. The declaration among other things asserted the right of the ljaw people to ownership and control of their fives and resources. The Kaiama declaration affirmed that:

“All land and natural resources(including mineral resources) within the ijaw territory belong to ijaw communities and are the basis of our survivail. We cease to recognize all undemocratic decrees that rob our people/communities of the right to ownership and control of our lives and resources, which were enacted without our participation and consent. These include the Land Use Decree and the Petroleum Decree e.t.c” (kaiama Declaration, 1998).

It is important to point out that the declaration affirmed “we agreed to remain within Nigeria but to demand and work for self government and resource control for the Ijaw people” (Kaiama Declaration, 1998). Today, all Niger Deltans including the political leaders have embraced the struggle for resources control.

8. CITIZENS’ FORUM FOR CONSTITUTIONAL REFORM (CFCR) AND RESOURCE CONTROL

The Citizens Forum for Constitutional Reform is a coalition of over ninety civil society organisations committed to a process led and participatory approach to constitutional reform in Nigeria. When the forum was formed in July 1999, one of the critical areas identified for intervention in its constitution reform work is fiscal federalism. In the year 2001 when the Forum prepared its position, it stated:

“It has been noted that the 1999 Constitution violates the principles of Federalism as applied to revenue allocation. In mature federal political systems, federating units have the right to control their resources.  For example in the USA, the state of Alaska owns all the lands in the State currently producing oil and collects over $1.1 billion annually in royalties on production in its public land.  In Canada, the provinces (states and regions) are entitled to extract a royalty payment in respect of each unit of production. In Australia, States collect royalties but not taxes. The past and present revenue sharing formula in Nigeria are bedevilled with problems. The central problem has been that developmental benefits expected from a resource – rich economy like Nigeria has not materialised. This arose from the way revenue generated from the vast resources have been utilised. Revenue allocation formulas adopted over the years have continued to generate much controversy. Specifically, geographical areas where these resources are located have not been seen to record the level of development commensurable with the level of resource. Derivation principle, which has been used since the 70s to try to transfer some of the revenue from resource exploitation to the areas, have not satisfactorily addressed the problem.

We recommend that:

However, during the outreach programme  of the Forum, different views began  to emerge from the state and zonal conferences. The south east zone endorsed the position of the Forum as stated above. The south south zone stated unequivocally that states should have 100 percent control of their resources. The southwest zone stated that regions should control their resources. The North central zone agreed after voting that the 13 percent derivation should be maintained. The Northeast zone agreed that the status quo should be maintained. They added that the Supreme Court has already decided the matter. The Northwest zone agreed that the current practice, which placed the resources on the federal government, should continue but that more resources should be allocated to states where these resources are sourced from to enable them to tackle the problems associated with resource exploitation.  This necessitated a workshop on contentious issues in the review of the 1999 constitution which was held at Abuja from 3^rd –6^th july, 2002. On the issue of resource control, the workshop resolved as follows:

1.The 1999 Constitution violates the principles of Federalism as applied to revenue allocation. The principle of Fiscal Federalism requires that the respective tiers of government should not only be autonomous in their resources, but that such resources should be enough for them to be able carry out their autonomous functions.

2. The Federating units i.e. state have the power to control, allocate and manage the    resources in their areas so that communities will benefit directly from the resources.  They should, however, pay taxes to the Federal government at a rate that will be agreed upon s by all stakeholders.

3. The resources referred to above should include mineral, agricultural, and human resources.

4. There should be an Equalisation Fund, which should be distributed to all the federating units (i.e. state) on the bases of balanced development, basic need and minimum standard.  There will be a national average for revenue below which no State is expected to fall. Any state that falls below the National Average would be given funds from the Equalisation Fund.

5. At all levels of government, mechanisms must be put in places to ensure public control and accountability. (Communique, CFCR, 2002)

It is clear from the above that there are people from all parts of the country that support the struggle for resource control. For instance the Northern Coalition for the Protection of Democracy (NCPD) under the leadership of Comrade Uba Sanni “has been in the forefront of agitation for true Federalism, resource control and social justice in Nigeria” (NCPD, 2002)

9. CONCLUSION

There is no doubt that majority of Nigerians agree that federalism is the most suited system for governance in Nigeria. However, the history and operation of constitution in Nigeria shows that it negates all federalist principles and practice. In any case, it is clear that control/allocation of resources is a constitutional issue. Meanwhile, the struggle for resource control in Nigeria has not given sufficient attention to constitutional reform. There is therefore the need to place emphasis on constitutional reform in the ongoing struggle for resource control in Nigeria. It is clear that there are progressive elements from all parts of the country that support the struggle for resource control. We must therefore network and build alliances across every geopolitical zone in the country to ensure the success of the struggle. The struggle for resource control in Nigeria is a just struggle. The ruling class may postpone its realization. They may put obstacles to its realization but they are destined to fail. The struggle for resource control must be won for Nigeria to remain as one nation.

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ABOUT THE AUTHOR

Otive Igbuzor hails from the oil producing community of Orogun in Ughelli North Local Government Area of Delta State in the Niger Delta region of Nigeria. He is a Pharmacist, Political Scientist, human rights activist and consultant on constitution, gender and development issues. He was a founding and leading member of many human rights and mass democratic organizations in Nigeria including Committee for the Defence of Human Rights (CDHR), Campaign for Democracy (CD), United Action for Democracy (UAD), Community Action for Popular Participation (CAPP), Health Rights Initiative (HRI) and Democratic Alternative (DA). He was also a member of Civil Liberties Organisation (CLO) and Women in Nigeria (WIN). He was a member of the National Executive Council of the Pharmaceutical Society of Nigeria (PSN) and Borno State Chairman of Nigerian Association of General Practice Pharmacists (NAGPP). He is a member of the Pharmaceutical Society of Nigeria (PSN), Social Science Academy of Nigeria, African Association of Political Science and Third World Academy of Sciences. He is also a member of many community development associations.

Mr. Igbuzor holds a bachelors degree in pharmacy and two Masters degrees, one in Public Administration and the other in International Relations. He is about completing his doctorate degree in Public Administration specializing in Policy Analysis. He has published many scholarly articles on democracy, health, gender, politics and development. He once assisted in the process of making a new constitution for the Republic of Rwanda. He was a lecturer at the Delta state University, Lagos State Centre where he taught Nigerian Government and Politics, Research Methodology and Policy Analysis. At present, he is a Senior Programme Officer with the Centre for Democracy & Development (CDD), a non-profit, non-governmental, independent research, information and training institution dedicated to policy-oriented scholarship on questions of democratic development and peace building in the West African sub-region. He also serves as the Secretary of Citizens Forum for Constitutional Reform (CFCR), a coalition of over ninety civil society organizations committed to a process led and participatory approach to constitutional reform in Nigeria.

Otive Igbuzor is the Secretary, Citizens Forum for Constitutional Reform (CFCR) 2, Olabode Close, Off Association Avenue, Ilupeju Estate, P.O. Box 15700, Ikeja, Lagos, Nigeria. Tel: +234 1 8043221, 08033039797

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