Military Rule and Damage to the Spirit of the Nigerian Constitution
State University of New York at Buffalo
Peter Ekeh at the Lagos Lecture, December 1, 2010
A lecture delivered at a forum organized by Lagos State, Nigeria, at Eko City Hall, December 1, 2010. I thank His Excellency Babatunde Fashola, Governor of Lagos State of Nigeria, for his kind invitation to me to address this gathering of Chiefs and grassroots of Lagos State as well as a good sampling of interested Nigerian intelligentsia. I am grateful to Professor Adebayo Williams, Adviser to the Governor of Lagos State on International Affairs, for making the invitation to me possible. I acknowledge, with thanks, help from Dr. Isaac James Mowoe in the revision of an earlier draft of this paper.
Most modern nations have fundamental documents which are especially designated as Constitutions that define the scope and limits of the powers of organs of government which run their affairs. Constitutions provide boundaries and contexts for legislative acts of national and sub-national parliaments and they circumscribe judicial interpretation of legal enactments by legislative assemblies. In Nigerian political history, there has been an abundance of these constitutional documents, stretching from colonial times to the current version of the 1999 Constitution of the Federal Republic of Nigeria.
Well beyond such written constructions, modern nations also take into account their constitutional histories and practices, which may predate their prevailing Constitutions. Such histories and practices capture legal and constitutional sentiments and attitudes that reflect the collective wisdom of the people whom written Constitutions are deemed to serve. I will refer to such bundle of folk practices, sentiments and attitudes towards the governing principles that the people embrace as the spirit of the nation’s constitution. Ultimately, any nation’s written constitution derives its underlying authority and legitimacy from its compliance with the Spirit of the Constitution which informs the people’s respect for governance. National constitutions that disrespect the constitutional history and practices of the people are therefore inherently defective.
The distinction between a nation’s prevailing Constitution and the Spirit of its Constitution may appear contrived in certain historic instances in which written constitutions have longevity and are fully reflective of the constitutional thought of such nations. However, in many other instances in which written constitutions have chaotic history, the distinction between prevailing Constitutional documents and the Spirit of the Constitution is an intellectual imperative. Consider the case of Nigeria. For two prolonged periods under military rule, Nigeria’s written Constitutions were suspended by its military dictators. Although the written Constitutions of the nation were thus rendered moot by those who forcibly seized power, the spirit of the Nigerian Constitution could not be decreed out of existence by any ruler’s fiat because it endures as an integral element of the political culture of the nation.
The elementary framework for Nigeria’s constitutional practices was constructed during colonial times. By the date of Nigeria’s national independence from colonial rule in October 1960, the outline of Nigeria’s constitutional thought and practices had become clear. In particular, in the decolonization decade of the 1950s, beginning with the Ibadan Conference of 1950, Nigerians were fully immersed in the business of constructing a constitution by which their challenging cultural diversities could be ruled together as one nation. Although the violent overthrow of constitutional government in 1966 and the subsequent onrush and upheaval of civil war and military rule halted further elaboration of Nigeria’s constitutional pathways, the constitutional framework that emerged from the negotiations of the decolonization decade of the 1950s seemed to have embodied rather fully the spirit of Nigerian political thought.
Despite its suspension of the country’s 1963 Republican Constitution, military rule in Nigeria initially respected the spirit of the Nigerian Constitution. Indeed, throughout the era of the civil war and while General Yakubu Gowon presided over the Central Government, Nigeria’s political affairs were ruled by a healthy respect for the central tenets of the spirit of the Nigerian constitution that was inherited from the civilian era of governance before the onset of military rule. A major departure from such implicit adherence to the spirit of the Nigerian Constitution began with the military putsch of 1975 led by General Murtala Muhammed and General Olusegun Obasanjo. Their military regime imposed a new constitutional framework that sharply revised the doctrine of Nigeria’s Independence Constitution. It is that new framework, introduced by an ideologically impassioned military regime from 1975 onwards, which has taken hold in post-military Nigeria. The current 1999 Constitution of the Federal Republic of Nigeria, decreed into being on May 5 1999 by General Abdulsalami Abubakar and his exclusively military Provisional Ruling Council, is ultimately a product of that newer constitutional framework. In many ways, both in terms of the structure and the culture of the Constitution, the existing constitutional framework and its rendition in the 1999 Constitution contrast sharply with the older principles of constitutionalism that we inherited from the colonial era and its immediate aftermath.
In order to assess the attributes of the existing 1999 Constitution and in order to reach any conclusions about its strength or weaknesses, it seems proper to compare and contrast these two constitutional frameworks that have dominated Nigeria’s Constitutional history. That exercise should enable us in some way to measure how much the 1960-63 Constitution and the military-inspired 1999 Constitution comply or deviate from the spirit of the Nigerian Constitution as it emerged in our political culture following independence from colonial rule. Foremost in such comparison is an assessment of the environment that enabled these different constitutional frameworks as well as an appraisal of the factors that drove their construction.
The Independence Constitution of 1960 (along with its slightly revised 1963 version) was the product of sheer necessity borne out of attempts to reach difficult compromises among competing regional interests. The Willink Commission of 1957 was set up to probe the fears of minorities about their political fate in independent Nigeria in regions dominated by the Fulani aristocracy in the Northern Region, by the Igbo in the East and by the Yoruba in the West. Its publication in 1958 revealed just how contentious the negotiations for a formula for a constitutional federalism had become. The result of the negotiations of the protracted constitutional conferences of the pre-independence era was a homegrown form of federalism that protected regional interests, resulting in a central government with limited and circumscribed powers. The Independence Constitution was not ideologically driven nor was it fashioned from any templates copied from other people’s experiences. On the contrary, it was grounded in the practical experiences of Nigerian history and the preferences of Nigerians to ensure that their teeming ethnic nationalities should co-exist in a common political space in full anticipation of mutual benefits for all, while avoiding enforced uniformities.
In sharp contrast, the various exercises to construct a perfect constitution for Nigeria under military rule were driven by a singular ideology and mania of centralization of governmental structures. These constructions of a perfect constitution did mock the spirit of the Nigerian Constitution from the Independence era by incorporating the term “Federal” in the title of the Constitutional documents that were produced by commissioned bodies, including especially the Political Bureau under General Ibrahim Babangida’s regime. In other words, there was a marked departure in these military Constitutions from the pathways of federalism. They decidedly veered instead in the direction of full and unhindered centralization of powers. In one important sense, the Constitutional documents manufactured from military rule -- in 1979 under General Olusegun Obasanjo, in 1988 under General Ibrahim Babangida, in 1995 under General Sani Abacha, and in 1999 under General Abdulsalami Abubakar -- could be deemed to be the ratification of measures of centralization that military dictators had undertaken with little or no consent from vested civilian interests. Moreover, the 1999 Constitution appears to be a mandate from military dictators to their civilian followers in the Nigerian populace that they should continue with centralization of governmental functions as the only way forward in the governance of Nigeria. Therein lies the challenges in the 1999 Constitution that finally emerged from decades of military dictatorship in Nigeria.
My key argument here, therefore, is that the centralization mantra of the military constitutions was radically different from the federalism that was crafted in the Constitutions of 1960 and 1963, before the downfall of constitutional governance. Permit me to anchor that point of view on two prime examples of the scope of the Constitution and the creation of constituent states of the Nigerian Federation. The Nigerian Independence Constitution of 1960 (as well its revised Republican Constitution of 1963) was made up of four constitutional statements: (a) Constitution of the Nigerian Federation; (b) Constitution of Northern Nigeria; (c) Constitution of Western Nigeria; and (d) Constitution of Eastern Nigeria. Subsequently, the Constitution of Midwestern Nigeria was added to these when that Region was created in 1964. That is to say, each of the federating regions of the Nigerian federation stated in written constitutional documents its unique preferences in the form of governance best suited to its needs and traditions -- provided these preferences did not violate the tenets of the common federal constitution. For instance, at an early stage of its constitutional development, Eastern Nigeria chose to be governed by a unicameral House of Assembly, whereas each of the North and the West had a House of Chiefs in addition to a House of Assembly. There were similar unique choices in the areas of bureaucracy, education, and agricultural development that each of the Regions made in their constitutional affairs.
All such nuanced preferences and uniqueness have been swept away by the centralized mandate of the 1999 Constitution. It has no room for separate constitutional choices. All the States can only have the single choice of the dictated House of Assembly decreed by Article 90 of the 1999 Constitution of the Federal Republic of Nigeria: “There shall be a House of Assembly for each of the States of the Federation.” One could imagine that if the choices were available, some states of the Federation might opt to have second legislative chambers, probably named House of Chiefs or State Senate. Others, perhaps for financial reasons, might be satisfied with unicameral legislative assemblies. This stricture of the 1999 Constitution should not be dismissed as a slight disadvantage. To resort to a bit of pre-colonial history: up to the point of outbreak of civil war in old Oyo in the late eighteenth century, Oyo kingdom had two legislative assemblies, Oyo Mesi and Ogboni, which served the realm quite well (see Johnson 1921, Morton-Williams 1960). Why would modern Oyo State, for instance, not opt for the stability and wisdom which a second Chamber confers in the governance of a people?
Let me offer a second prime example of over-centralization that flowed from the era of military rule by discussing the profligate manner of creating constituent states of the Federation that has sadly emerged as part of our new political culture. The campaign by disadvantaged minority ethnic groups for creating more Regions out of the existing three Regions of the North, West, and East grew loud and serious in the decolonization decade of the 1950s (see Arikpo 1967). The fears of the minorities and their demand for equity were the principal rationale for the establishment of the Willink Commission at the London Constitutional Conference of 1957. The Commission canvassed views throughout Nigeria in an exercise that has remained a major example of how carefully and how seriously national constitutional matters should be weighed. In the end the Willink Commission declined to recommend the splitting up of any of the Regions, offering instead other options for allaying the fears of the minorities. One principal reason for this outcome was the opposition of each of the Regions against losing any portions of its territory. These Regions were fearful of losing economic resources at a time when they had to rely on their own productive powers for their survival and prosperity. However, following Independence and crisis in Western Nigeria, the two coalition partners at the Federal Center, namely, Northern Peoples’ Congress (NPC) and National Council of Nigerian Citizens (NCNC) combined to force through the Constitutional steps necessary to create a new Midwest Nigeria out of the troubled Western Region. These included legislative approval at the Federal Centre and in the legislative assemblies of the affected Western Region as well as a referendum in the two Provinces of Benin and Delta that sought separation from the Western Region.
The creation of the new Midwestern Region out of Western Nigeria did not of course calm down the crisis in the Region. On the contrary, its intensification led directly to the bloody coup d’ etat of January 1966 and eventually to civil war. On the eve of that Civil War between secessionist Eastern Nigeria and the rest of the country, General Yakubu Gowon’s Central Government took extra-constitutional measures to create a total of twelve states in the Federation, thus satisfying the agitation of disadvantaged minorities for their own states. It was at this point that the awkward terminology of Regions, of colonial vintage, was dropped in deference to its current term of states. That exercise of states creation carefully balanced the interests of Northern Nigeria and Southern Nigeria, creating six states in each of these historically distinct areas.
Yakubu Gowon’s creation of twelve states in 1967 could be seen as a war-time stroke of preemptive diplomacy that probably helped Nigeria to defeat secession. He was cautious not to turn it into a popular exercise to be repeated. However, the two men who drove General Gowon from office were not so careful. Murtala Muhammed and Olusegun Obasanjo were in a hurry in 1975 to create more states. They and the cohort of their successors of military dictators have by now created a total of thirty-six states by unchallenged acts of military decrees. In these later exercises of states creation, economic viability of the states has disappeared as a central criterion to be wieghed. For instance, some of the states that have been created in these waves of states creation are among the least economically productive areas of the Sahel region of West Africa. Even so, there are current political pressures to split many of Nigeria’s economically unviable states into even smaller units. This is because there is no strict requirement that Nigeria’s constituent states should be economically viable. It is enough for the states to await allocation from the Federation account and the Central Government at Abuja to survive. The unwritten formula that equal numbers of states should be created for the North and the South in any exercise of states creation does mean that states with marginal resources will continue to emerge in what appears to be an unending agenda of adding more states by splitting existing ones. Not surprisingly, civilian successors to military rulers seem to believe that they must create their own share of states, as the ongoing campaigns for states creation demonstrate. One wonders how many states will exist in the Federation in, say, fifty years hence. One wonders, indeed, if we as a people bother to look that far ahead into Nigeria’s prospects. This unending cycle of states creation is clearly a worrisome development that may further cripple Nigeria’s capabilities to participate fully in the unfolding global economic expansion of the twenty-first century.
Without doubt, the over-riding legacy of military rule in Nigeria is over-centralization of governmental functions. In my view, it is a legacy that Nigeria must curb if it has a chance of competing in the tough international environment of the twenty-first century. Military dictators imposed various schemes of centralized governance in the apparent belief that the previous era of multiple structures and functions of autonomous governments were cumbersome and inefficient. But obsession with centralization of governance, which military rule has bequeathed to us, has resulted in failures that are glaring and that have humbled Nigeria. I will pick on two instances of over-centralization in order to illustrate the debilitating consequences of military rule in the sphere of constitutional development of Nigeria.
First, we must weigh the damages that local governments have suffered as a result of over-centralization. In colonial times and in pre-Civil War independent Nigeria, local governments were important arms of state governments. Local governments, initially called Native Authorities, delivered a wide range of services in rural areas. These included excellent elementary school education that many young men in rural areas relied on for climbing up to working careers and to precious further secondary school education. Local governments offered such other valuable services as motorable roads, medical treatment dispensaries and disease control projects, including management of such deadly diseases as leprosy and small-pox. Many rural communities relied on these services.
In urban areas, Town Councils offered an array of services that city dwellers relied on. Sanitary inspection, town planning, water supply and markets and their managements were among valuable services that Town Councils provided in all regions of Nigeria. The personnel of such high profile Town governments as Lagos Town Council rivalled that of the Central Government in the quality of employees whom they attracted. Thus, such giants in the history of Nigerian public service as Dr. Ladipo Oluwole and Chief Adogbeji Salubi were employees of Lagos Town Council in the 1930s-1940s.
All of these local government formations were judged to be efficient because they raised the revenues from which they funded the services that they provided. They did receive subventions from Regional and Central Governments, usually for targeted expenditures. But they had to tax residents as well as raise tax revenues on the services that they provided. Local government treasuries were key aspects of Regional governments because they raised funds. They were not without their problems. Theft of funds was not uncommon. But these thieves were often convicted in courts of law.
Any fair-minded historical evaluation of the system of local governments that was in place before military rule would find it difficult to dismiss it as of no value to the ordinary men and women whom they served. Yet the sweep of centralization reforms of 1975-1976 ushered into local government formations in the country some constitutional changes that have dramatically altered their character. Sadly, those changes have had unintended consequences that have virtually led to the downfall of the local government system in Nigeria. This is so whether we wish to compare the well-funded local governments of our times to their ancestors in colonial times and in the era before military rule or whether we compare these “modern” Nigerian local governments with their international counterparts. In my view, the downfall of the system of Nigerian local governments is traceable to inherent flaws of the centralization measures that have federalized their legal status and their funding.
The 1999 Constitution recognizes 768 local governments that military rulers, operating from the Central Government, had decreed for the states and the Federal Capital Territory at Abuja. Unlike the era before military rule, there is no necessary condition requiring that these local governments be economically viable or that they be capable of raising internal revenues for the presumed services that they are expected to provide to their areas of governance. As a matter of fact, these local governments were created by military rulers to serve as receptacles of their allotted share of the largesse from petroleum oil revenues distributed from the Federation Account. Put differently, most of these local governments would collapse if they did not receive regular allocations from the Central Government.
The first major casualty of the federalization and centralization of local governments under military rule and its aftermath in the 1999 Constitution is the loss of the vital distinction between local governments in rural areas and those in urban and metropolitan areas of the nation. Centralization has created false uniformities of functions for local governments (that have been meticulously elaborated in the Fourth Schedule of the 1999 Constitution). These functions have been pegged at the expectations of rural areas. The larger leadership roles that mayors of international metropolitan cities now direct in the 21st century have been reduced to those functions that Chairmen of rural areas are expected to provide. Would it not have been more beneficial for development prospects of the nation if Nigeria’s local governments, especially those in the Cities, are challenged to provide statements of Charters that spell out their expectations of functions and the office holders who would perform those functions? What would be wrong for affected States in carving out major metropolitan areas like Lagos, Kano, Port Harcourt, Warri and Benin that could compete with their international counterparts and not thus be limited to comparison with the governance of rural areas with less population and fewer problems of governance? It is sad to see several cities that had illustrious histories of metropolitan governance, like Warri and Jos, now reduced to the status of rural local governments.
Furthermore, there are major sociological problems of alienation and corruption that appear to have arisen as a consequence of the constitutionally mandated funding of the local governments from the Federation Account. When, in a previous era before military rule, Native Authorities and local government councils raised revenue from local sources, the chieftains of these bodies were close to the people. They needed the support and approval of the people whom they served for the success of their duties. Under military rule and in the post-military era, the chieftains of local governments rely heavily on remittances from the Central Government. Many of them do not need to raise additional funds from local sources. Consequently, in many states of the Federation, there is a growing alienation of the people from the chieftains of Local Government Councils. In addition, there is widespread corruption because the Councils preside over funds that come from the Central Government almost in the form of gifts, sometimes with few strings of accountability attached to them.
Let me move on to another area concerning police and security in which mandated centralization has wreaked havoc on the provision of basic security and policing services in every-day life in Nigeria. Well up until the onset of military rule in 1966, Nigeria Police Force had an illustrious history. Formed from the British West African Frontier Force in 1898, the Nigeria Police Force was a paramilitary constabulary with quasi-police functions (see Tamuno 1970). Under colonial rule, the austere Nigeria Police Force had a civil companion in neighbourly Native Authority Police formations which functioned under the control of local governments in the North and West. Or, as a pair of authors reported the matter, "The [Nigerian Police] Force was assisted in the North and in the West by local native administration [N.A.] forces of varying size and quality ... No such forces existed in the East" (Clayton and Killingray 1989: 26).
The Nigeria Police Force became a subject of fierce controversy during the decolonization decade in Constitutional conferences that prepared Nigeria for independence from colonial rule. In the London Conference of 1957, the three Regions pressed for constitutional provisions that would allow them to establish their own police forces in addition to the federal Nigeria Police Force. This proposition was opposed by the minorities in each of the Regions who feared that Regional (that is State) Police formations would become instruments of oppression. Consequently, establishment of Regional or State Police was not allowed in the 1960 and 1963 Constitutions, although the training and control of the Nigeria Police Force had regional components that did not therefore leave the Regions bereft of policing authorities and functions. Moreover, the Independence Constitution allowed the establishment of local government police units by permitting the Regional Governments to make “provision for the maintenance by any native authority or local-government authority established for a province or any part of a province of a police force for employment within that province” (1960 Constitution: Chapter VII (7)). In addition, the 1960 Independence Constitution and the 1963 Republican Constitution had provisions for establishment of local government police units in the Federal Territory of Lagos (1960 Constitution: Chapter VII (6)).
All these arrangements seemed to have helped the Nigeria Police Force to maintain a reasonable image and to enjoy a decent amount of national and international reputation well up to the 1960s. Thus, to help the international community to resolve the Congo crisis of the early 1960s, the United Nations canvassed for the assistance of the Nigeria Police Force. U Thant, Secretary General of the United Nations, made his case before the Security Council of the United Nations for the employment of Nigeria Police Force as follows: "The question of training of the ANC [Congolese National Army] would have lesser importance if law and order could be protected in various [Congolese] localities by the local police force. Unfortunately, those forces tend to be badly organized. .... It is very satisfying, therefore, that the Nigerian Government has now undertaken to help the Congolese Government in the reorganization of the Congolese Police Force, which in the long view is also vital for the country." (Cited in Ohaegbunam 1982: 125.) The Nigeria Police Force was indeed commissioned to train the Congolese Police Force, a duty that it performed well -- to the satisfaction of the international community and to the pride of Nigerians.
Such was the civilian Nigeria Police Force that military rule inherited from the civil realm that it overthrew in the mid-1960s. Today, after several decades of centralization of policing operations in the country, the Nigerian Police Force has suffered a major downfall from its lofty erstwhile heights as a competent organization. Indeed, domestically in Nigeria and internationally, Nigeria Police Force is now universally derided, with great concern and in total dismay. Nigeria is now faced with monumental problems of insecurity in the everyday life of ordinary and elite Nigerians because Nigeria Police Force has become incapable of carrying out its constitutional responsibilities of supplying basic law and order on behalf the Central Government of Nigeria.
Under military rule, the Nigerian Police Force has become totally centralized. First, Local Police forces were abolished by the military, ignoring the relevant provisions of the 1963 Constitution, following the overthrow of civil order by the military putsch of 1966. Second, the military-inspired constitutions of 1979, 1988, 1995, and 1999 have banned any police formations other than the Nigeria Police Force. This prohibition is stated in Article 214 (1) of the 1999 Constitution as follows: “There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and … no other police force shall be established for the Federation or any part thereof.”
This Constitutional prohibition has the effect of depriving State Governments and Local Governments of the authorities to provide basic security for citizens under their jurisdiction. The most elementary duty of any government is the provision of basic security. It is therefore an irrational prohibition that could result in catastrophic failures in governance. The gradual erosion of basic security in the country must be blamed on high-handed military concentration of provision of security in the hands of Nigeria Police Force which has no presence in most towns and villages of the Federation. Many of those villages and towns will be glad to raise funds to establish their own policing units for the sake of protecting their lives and properties. It is irresponsible to deny them the Constitutional authorities to do so. Nor is it proper to deny the constituent States of the Federation proper Constitutional authorities to raise police forces of their own to perform their role of protecting the security of their citizens. On the international scale of this matter, it is noteworthy that some of the most efficient police forces in the modern world are owned and operated by local governments of cities. New York Police Department (NYPD) and the London Metropolitan Police are first rate police organizations of international standing that are run by local governments. Why should Nigeria constitutionally bar its metropolitan areas from the opportunities of participating in developments that are the hallmark of the twenty-first century? Of course, a slimmer Federal Nigeria Police Force has its own important share to contribute to the overall security needs of the nation. But it must not be overburdened.
Let me sum up by returning to the central argument of this lecture. It is that military rule has served Nigeria poorly because it relentlessly operated under an ideology of centralization of governmental functions, particularly after the military putsch of 1975. The most tangible and nagging consequence of this mania of centralization is the 1999 Constitution of the Federal Republic of Nigeria. In modern times, national constitutions have the dual supreme purpose of overcoming historic impediments to progress and of enabling the countries for which they are drafted to participate with competence in the sophisticated international community of peoples and nations of the twenty-first century. I daresay, the 1999 Constitution accomplishes neither of these goals.
Nigeria’s military leaders have misread the central canons of the nation’s history and sociology. First, they have treated Nigeria’s cultural diversities as disabilities that have to be cured. Second, military rulers have used the instrument of centralization of governmental structures and functions as a vehicle for overcoming what they saw as inefficiencies that regional diversities compel. We all are witnesses to the appalling failures of the 1999 Constitution for which the downfall of Nigeria’s local governments and the current disgrace of the erstwhile illustrious Nigeria Police Force should serve as forceful examples. In my view, Nigeria’s cultural and sociological diversities do supply a solid foundation for a genuine federal system in which the productive energies of different regions are harnessed together to build up a great nation. A dispassionate review of the Nigerian Constitution should include a reversal of the destructive notion that constituent states of the federation and their local governments exist to receive ready-made largesse from the Centre. A new Constitution should have the courage to challenge all tiers of government, particularly state and local governments, and all agencies of government to make contributions to our common wealth and welfare. Otherwise, Nigeria will be left farther behind by its competitors in the race for survival and prosperity in the twenty-first century and beyond.
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