A constitution resembles a sharp pencil of light, which brightly illuminates a limited area of a country's political life before fading into a penumbra where the features are obscured - even if that surrounding darkness may conceal what are the most potent and significant elements of the political process' - Prof. S. E. Finer.WITH the exception of Britain, Israel and New Zealand, almost every state in the world today possesses a written constitution. Constitutions are codes of rules designed to regulate the allocation of functions, duties and powers among the various agencies and officers of government and to define relationships between these and the public.To a federal system of government, like the United States (U.S.) and Germany, for instance, a written constitution is a desideratum devoutly to be wished. This is because it helps the allocation of powers between the component parts of the federation (the Lander) and the central government. If this is so in societies where the laws are felt in foro interno and not just by reason of their sanctions, a federation in an under-developed nation-space, like Nigeria, a fortiori, has to be governed by a written constitution. To effectually constrain both the authorities and the public, however, the provisions of such a constitution must be self-consistent and unambiguous. A good constitution should contain programmatic matters, a self-consistent set of laws, which control the conduct of government.The Constitution of the Federal Republic of Nigeria, 1999, bristles with so many anomalies, springing from historical and temporary causes and it can hardly be taken as a fair representative of any known form of government. It is at once democratic and autocratic; secular and theocratic; civilian and military; federal and unitary. Below, we shall reveal the true picture of the 1999 Constitution in order to demonstrate why it should be reviewed and not just amended. Constitutional amendment involves an alteration of one or a few sections of the constitution whilst constitutional review is a surgical recasting (a major overhaul) of the entire constitution.It should be noted, to start with, that certain conditions are essential to a federal state. These include a very peculiar state of sentiments, which existed among the inhabitants of the regions or federating units prior to the formation of the federation. The state of sentiments, which existed among the inhabitants of the original three regions, which formed the Federation of Nigeria, under the Oliver Littleton Constitution, on October 1, 1954, was the desire for union and not desire for unity.The desire for union is essential to the formation of a federation while the desire for unity is the ingredient for unitarism. In a federation there are two feelings, which are, to a certain extent, mutually inconsistent: the desire for national unity and the determination to sustain the independence of each of the units (cantons), which constitute the federation. The aim of federalism is to give effect, as far as possible, to both of these sentiments. That explains why power-sharing is an essential feature of federalism.The Congress of the U.S. has a very limited power of legislation as it can make laws upon 18 topics only. Among these are defence, citizenship, immigration and external affairs. On the other hand, Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999, under Exclusive Legislative List, contains 68 items on which only the National Assembly can legislate. The so-called Concurrent Legislative List, in Part II of the Second Schedule to the Constitution, contains 12 items - A-L, comprising 30 paragraphs. Twelve of the 30 paragraphs (i.e. 1, 3, 4, 7, 11, 13, 16, 17, 21, 23, 25 and 27) are couched in a manner suggesting that the National Assembly has exclusive right to legislate on them even though they are under the concurrent legislative list!The 10th Amendment (November 3, 1791) of the Constitution of the United States of America, provides that 'the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States (i.e. residual powers) 'are reserved to the states respectively, or to the people.' On the contrary, item 68 of the Part 1 of the First Schedule to the 1999 Constitution and paragraph 1 of Part III of the Second Schedule thereto surreptitiously place residual powers, that is, powers not covered by either the Exclusive or Concurrent Legislative List, under the legislative competence of the Federal Legislature as they provide, respectively, that the National Assembly shall have powers over any matter incidental or supplementary to any matter mentioned elsewhere in the list, and that where the National Assembly is required to designate any matter or thing or to make any declaration, it may do so either by an Act of the National Assembly or by a resolution passed by both Houses of the National Assembly.Besides, Section 4 (5) of the Constitution empowers the National Assembly to invalidate any law enacted by a State House of Assembly, which is inconsistent with any law validly made by the National Assembly under the doctrine of covering the field. This is redolent of a centripetal or unitary system of government, in contradistinction to the centrifugal federalism, which the founding fathers of Nigeria plumped for at Independence.The power distribution method in the 1999 Constitution contrasts sharply with the U.S. and Australianmethods but is analogous to the USSR (Stalin and Brezhnev) constitutions, respectively, of 1936 and 1977, which concentrated the three powers of government in the central government, and to the Indian Constitution, which conferred on the Union Parliament powers to legislate on the exclusive list and on residual matters. The dismemberment of the subcontinent of India in 1947 into the Republics of India, Pakistan and Bangladesh, and the condign and inescapable death of the USSR at the tail-end of the 20th Century, were directly ascribable to the highly centripetal nature of the Indian and USSR federations, consisting, like Nigeria, of a disparate congeries of ethnic nationalities and diverse socio-cultural antecedents.A reviewed Constitution of the Federal Republic of Nigeria should have, on the exclusive Legislative List, no more than 12 items, including weights and measures, currency, central banking, posts and telegraphs, copyright, declaration of war against a foreign nation, immigration/emigration, external affairs, maritime shipping/navigation and nuclear energy. And there should be no more than 15 items on the Concurrent Legislative List. As in the U.S. and in Australia, all residual matters should be reserved to the federating units.The 1999 Constitution contains innumerable sections, which are mutually at odds with one another, as well as provisions which paint the Constitution in the hues of unitarism, theocracy and authoritarianism: Section 3 (1) (6) of the 1999 Constitution (as amended) on the number of states and local government areas should be expunged. Section 8 (5) (6) and item E, paragraph 11 of Part II of the Second Schedule thereto, which, in 2004, gave rise to enervating legal dialectics on the requirements for the creation of local government areas, should either be recast or removed. Section 6 (6), which ousts the jurisdiction of courts as though we remained in a military regime, should go.Section 10 forbids the government of the federation or of a state to adopt any religion as state religion, yet the right to the freedom of thought, conscience and religion, as well as the right to freedom from discrimination guaranteed by Sections 38 and 42 of the Constitution are notoriously restricted and impaired by Section 275, which allows any State that requires a Sharia Court of Appeal to establish it!All constitutions contain elements that are autobiographical and correspondingly idiosyncratic. Ipso facto, the enslaving, patronising and narcissistic section 55 of the 1999 Constitution (as amended) that perfidiously equates Nigeria with the three tribes of Hausa, Yoruba and Igbo, should be scratched out. Section 44, which impairs the citizens' right to property ownership, should be expurgated. Sections 68 (1) (g) and 109 (1) (g) and the provisos thereto on carpet-crossing, should be recast to obviate a possible misconstruction. Whereas sections 86 and 126 create the offices of the Auditor-General of the Federation and of a State, the Constitution is silent on the office of the Accountant-General of the Federation.Section 135 (3) on the powers of the President to extend his tenure of office in the event of a war, should state a limit beyond which such extension cannot go. Sections 142 (1) and 187 (1), respectively on the nomination and election of a Vice-President and a Deputy Governor are nebulous and have been the subject of controversy. Section 162 (1) (2), on revenue-sharing, represents an unblushing subversion of the principle of fiscal federalism, and should, therefore, be expunged.Similarly, Sections 132 (3) and 178 (3), which empower the electoral umpire to post-pone sine die the election of President or governor in the event of disqualification, withdrawal, incapacitation, disappearance or death of one candidate or of the other candidates, are otiose and misleading. Sections 143 (2) (b) (10) and 188 (2) (b) (10) on the removal of President, Vice-President, Governor or Deputy-Governor, are amorphous and are in conflict with sections 6, 36, 46 and 272 of the same Constitution and a long line of decided cases. Section 215 (3) (4) and the proviso thereto, which make State Governors nominal chief security officers of their States, should be blue-pencilled.The powers bestowed on the undemocratic Council of State by Sections 175 and 213, with respect, respectively, to the prerogative o f mercy and national population census, are too wide. Section 305, on the procedure for the declaration of a state of emergency, should be totally recast to reflect the federal nature of the country and to systemize the procedure for the declaration of a state of emergency.Section 315 (5) (d), which fossilises in the Constitution the Land Use Act, an arthritic military decree, should be scored out. Section 163 and item D of Part II to the Second Schedule of the Constitution on taxation, dangerously erode from the principle of fiscal federalism, and should be obliterated.It is clear from the foregoing that the 1999 Constitution (even as 'amended') should be completely recast (reviewed) and not just amended. We need a constituent assembly to do this job, not the National Assembly.Finally, the reviewers of the Constitution should always bear in mind that a federal state derives its existence from the Constitution, the law, which tests the validity of other laws.
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