Lecture Delivered by Chief F.R.A Williams, CFR, CON, SAN (foremost Nigerian Legal Luminary) at the 4th Professor Wole Soyinka Lecture held at the Agip Recital Hall, MUSON Centre, Lagos on Friday 13th, July 2001.
First and foremost, I wish to express my profound gratitude to those members of the National Association of Seadogs (the TBS Forum, Lagos), who have honoured me with the invitation to deliver the 2001 Wole Soyinka Annual Lecture. Let me also seize this opportunity to congratulate all the members of the TBS Forum, Lagos, for organizing this annual lecture in honour of that highly distinguished and outstanding Writer, Scholar and uncompromising Patriot and Africanist, Professor Wole Soyinka. The recognition of the Professor as a Patriot and an Africanist must not detract from his status and quality as a gentleman of global standing and reputation. I pay tribute to his achievements and warmly wish him many happy returns of this day.
In choosing the subject matter of this Lecture, I had in mind the fact that the gentleman to whose honour these lectures are dedicated has, over the years and in various ways, demonstrated his abiding love for our nation to the end that it may emerge to play its proper role in the upliftment of the African Continent and the socio economic development of its people.
The Search For Political Stability
In the early fifties, the British Colonial Office convened a Conference in London for Nigerians to discuss the enactment of a Constitution for this country. At that time, all shades of political opinions took it for granted that Nigeria would continue to exist as a single political entity and none of our political leaders ever conceived the idea of breaking up the country into separate independent ethnic or linguistic groups. At this point in time, experience has taught us that we have so far failed to device a system of Government capable of securing political stability for Nigeria. Although all right thinking Nigerians are conscious of this fact, it is still widely believed that we can find a satisfactory solution to the problem and that our country can continue to function as a single political entity. Some, at least, among those who participated on the British side in the exercise and have watched the goings on in Nigeria have expressed very serious doubts as to whether or not the decision for the continuance of Nigeria as a single entity was not, after all misconceived. Thus, in a letter in The Times of London, published November 16, 1995 the Parliamentary Secretary in the Colonial Office from 1952 to 1959 expressed his doubts on the matter. Part of his letter reads as follows:
There is an underlying lesson to be derived from the cruel and violent events in Nigeria. At the negotiations in the 1950s for Nigerian independence the doctrine in the Colonial Office was that this was a unique opportunity to set up a really substantial and powerful state in Black Africa: there were men of ability to lead it and the resources to back them. In such circumstances, the French would have created several small states of corresponding ethnic differences. In retrospect we should have done the same. We did not then have the advantage of having witnessed the problems of conglomerates such as post-imperial India, the Soviet Union and Yugoslavia, or the threatened break-up of Canada. The lesson is now clear. It is folly to force disparate ethnic groups into a single political conglomerate.
One of the major purposes of this Lecture is to make the point that although the problem of devising a workable and lasting system of government for our beloved Nigeria is far from easy, nevertheless, we must not lose hope or abandon the aspirations and expectations, which we have held for so long. We shall return to the theme of our search for political stability after saying a few words on the position of the people of Nigeria under the Constitution in the system of government. Our Constitution recognizes the vital principles that:
Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.
See Section 14(1) (a) of the 1979 Constitution, which has been repeated in the same section of the 1999 Constitution. That provision embodies the recognition by all Nigerians of the fundamental principle that no one has the right to exercise governmental powers over them except through the instrument of a Constitution made for Nigerians by Nigerians through their elected or accredited representatives. I have always believed that if at any stage, we Nigerians find ourselves operating under a Constitution which is not of our own making that Constitution can only be treated as no more than a temporary arrangement which must and will eventually be replaced by the duly elected or accredited representatives of the people of Nigeria.
We must never forget that our country comprises multi-ethnic groups with different cultural traditions. Having been ruled as a British colony or protectorate for several years, we decided that it is in the interest of all the peoples in this country that the powers of Government exercised by the British in colonial days should be handed over to us without disrupting the continued existence of Nigeria as one single and indissoluble political entity. British rule in Nigeria came to an end in 1960 and the powers of Government were handed over to us under a Constitution, which the majority of us thought would cater for the welfare of all Nigerians, and maintain the unity of the country. The 1960 Constitution failed to satisfy the aspirations and expectations of the majority of Nigerians. From that time up till this date, we have been searching for a Constitution that will provide peace, order and good government for all the peoples of Nigeria.
The Constitution of the Federal Republic of Nigeria, which came into force on the 29th May 1999, was enacted by Decree No. 24 published on 5th May 1999. The recitals to the Decree tell us how it came to be made. The said recitals are as follows:
The Federal Military Government of the Federal Republic of Nigeria in compliance with the Transition to Civil Rule (Political Programme) Decree 1998 has, through the Independent National Electoral Commission, conducted elections to the Office of the President and Vice-President, Governors and Deputy-Governors, Chairmen and Vice-Chairmen, the National Assembly, the Houses of Assembly and the Local Government Councils;
The Federal Military Government in furtherance of its commitment to hand over to a democratically elected civilian administration on 29th May 1999, inaugurated on 11th November 1998, the Constitutional Debate Co-ordinating committee charged with responsibility to among other things, pilot the debate on the new Constitution for Nigeria, co-ordinate and collate views and recommendations canvassed by individuals and groups for a new Constitution for Nigeria;
The Constitutional Debate Co-ordinating Committee benefited from the receipt of large volumes of memoranda from Nigerians at home and abroad and oral presentations at the public hearings at the debate centres throughout the country and the conclusions arrived thereat and also at various seminars, workshops and conferences organised and was convinced that the general consensus of opinion of Nigerians is the desire to retain the provisions of the 1979 Constitution of the Federal Republic of Nigeria with some amendments;
The Constitutional Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council;
The Provisional Ruling Council has approved the report subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handing over an enduring Constitution to the people of Nigeria;
It is necessary in accordance with the programme on transition to civil rule for the Constitution of the Federal Republic of Nigeria 1979 after necessary amendments and approval by the Provisional Ruling Council to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect from 29th May 1999.”
On the face of those recitals you will see at once that the authority, which gave final shape, and force of law to the 1999 Constitution was the Provisional Ruling Council, which was in existence at the material time. In this regard I draw particular attention to the very important phrase in the last recital, which reflects the fact that the Provisional Ruling Council has made “necessary amendments and approval by the Provisional Ruling Council”. The Decree No. 24 of 1999 by Section 1 (1) enacts that:-
- “There shall be for Nigeria a Constitution which shall be as set out in the Schedule to this Decree”. If the Decree had stopped at that enactment one would have simply treated what happened as a heritage of our political history which puts the ball in the court of the Nigerian people themselves to set things straight by taking necessary measures to substitute a Constitution for the people of Nigeria for the Constitution imposed on our Country by former military rulers. I have said it before and I repeat that what I consider to be outrageous and unacceptable is the combined effect of the provisions of subsection (2) and subsection (3) of the Decree in question. Those two subsections adopted what the Obasanjo Administration did in1978. The subsections read as follows:
- The Constitution set out in the Schedule to this Decree shall come into force on 29th May 1999.
- Whenever it may hereafter be necessary for the Constitution to be printed it shall be lawful for the Federal Government Printer to omit all parts of this Decree apart from the Schedule and the Constitution as so printed shall have the force of law notwithstanding the omission.”
I consider the subsections to be outrageous and unacceptable because they are clearly designed to conceal the fact that the Constitution was not the enactment of the representatives of the people of Nigeria and was in fact the imposition of the military authorities. The Constitution contains in its recitals, the following words:
“WE THE PEOPLE of the Federal Republic of Nigeria: DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES THE following Constitution”
The Federal Government Printer has been directed by the contents of section 1(3) of the Decree to omit all parts of the Decree showing that it was an enactment or imposition of the military dictators thereby giving the reader and future generations the impression that the Constitution imposed upon us was in fact enacted and given to ourselves by “We the people of the Federal Republic of Nigeria”. This was why in a lecture to a gathering of the Ikeja Branch of the Nigeria Bar Association I described the 1999 Constitution as a false document, which tells a lie about itself. It is false because, although it was in truth and in fact enacted or imposed upon the country by the military authorities the Constitution in question falsely declared that it was made by “We the people of the Federal Republic of Nigeria”.
I recall that when my remarks at the meeting of the Ikeja Branch of the Nigeria Bar Association was published one of our professors of law came out to criticize me on the ground that what the Abubakar Administration did in respect of the 1999 Constitution was precisely what was done in respect of the 1979 Constitution in the making of which I admittedly played a prominent role. I am bound to say that the remarks of the learned professor missed the point in issue because he did not fully inform himself of the proceedings which led to the making of the 1979 Constitution. It is necessary to recall what happened in respect of the making of that Constitution.
I was the first among others to warn the Obasanjo Administration of the importance of ensuring that the Constitution when published must be the product of the decision of the Constituent Assembly and must not be altered in any shape or form by the military authorities. I refer to the proceedings of the Constituent Assembly on the 1st November 1977 when I moved the second Reading of the Constitution in my capacity as an ex-officio member of that Assembly. Part of what I said on that occasion reads as follows:
It is possible for the Government to have been advised that unless a Decree is promulgated on the subject, the Constitution, as enacted by this Assembly, cannot be effective in law. If this is the view held in some quarters then it would be clear that far from any intention to modify the decisions of this Assembly, the Government may well be thinking of ensuring that legal force is given to our decisions. For reasons given earlier, I do not think that any Decree is necessary to give legal force to a Constitution enacted by a Constituent Assembly set up by a Decree of the Military Government. The idea that a Decree is necessary must have owed its existence to a failure to appreciate that a Constitution enacted for the purpose, possesses a legitimacy superior to that to be derived from the stamp of any other authority.
My own personal views are as follows –
The Assembly has the power and the duty to enact the Constitution for the Federal Republic of Nigeria and it should proceed to do so in accordance with the Standing Orders approved by the Supreme Military Council without much ado.
The Federal Military Government has assumed unlimited legislative and executive powers, which it is able to exercise effectively. The Government must be persuaded, should the need arise, to do nothing to tarnish the excellent record it has already set by arranging for this Constituent Assembly to deliberate upon and pass a Constitution for the Federal Republic of Nigeria.
If the Federal Military Government takes the view that there must be some formal promulgation of the Constitution as passed and approved by this Assembly, I will counsel that this Assembly should refer to its appropriate Committee the preparation (for our approval in this Assembly) of a reasoned statement on the issue of the proposal to enact a Decree for the purposes of the Constitution. If such a statement be forwarded to the Supreme Military Council, I believe that it will receive the attention it deserves before we commence the Third Reading of this Bill. We ought not to allow this matter to delay further progress on the main business before us.
Foundation of the Constitution
The sovereignty of the people of Nigeria is the foundation upon which the Constitution Drafting committee has erected the edifice of the Bill now tabled before this Assembly. This concept of sovereignty is based upon the principle that every Government derives all its powers from the people through the Constitution. That principle is so fundamental that its violation ought properly to be regarded as a crime against the people of Nigeria.
Many members of the Assembly contributed to the debate, and every speaker expressed concern with the possibility that the Constitution enacted by the Constituent Assembly might be altered or substantially modified by the military government. In the end, leading members of the assembly approached the representatives of the Federal Military Government and obtained the verbal assurance that its intention was not to alter the Constitution as approved by the Constituent Assembly.
Despite its oral assurance to the members of the Constituent Assembly, the military government did make some alterations in the Constitution as approved by the assembly. In fairness it must be admitted that one or two of the alterations were made in the public interest. The rest, no doubt, were made because the military government felt that it could not trust the members of the assembly to approve them. The opinion is widely held among Nigeria’s political leaders that these alterations, however well motivated, should have been made only with the approval of the Constituent Assembly, which could easily have been summoned for that purpose. In a decision of the Supreme Court of Nigeria, a Supreme Court Justice who was chairman of the Constituent Assembly said:
It is the duty of this court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the Land… that it was made, enacted and given by the People of the Federal Republic of Nigeria to themselves in Constituency assembled- for which reason and because it is autochthonous, it, of necessity, claims superiority to and over and above any other Constitution ever devised for this country – the unwarranted inter-meddlesomeness of the military authority concerning some of its provisions notwithstanding [emphasis added].
The portion of the quotation in bold italics demonstrates that the learned justice of the Supreme Court, who was aware of the oral assurance of the military government, did not take kindly to what he termed its “unwarranted inter-meddlesomeness” with the Constitution as approved by the Assembly over which he had presided.
You will find strong corroboration of what I have narrated regarding the role of the Obasanjo Administration in the making of the 1979 Constitution in the last chapter of a monograph by the late Sir Udo Udoma of blessed memory published in 1994 and entitled History and the Law of the Constitution of Nigeria. What he had to say at pages 390 to 392 of his work is revealing and I crave your indulgence to read passages from it:
In 1977 after the inauguration of the Constituent Assembly by the Military Head of State and the Supreme Military Council Lt. General Olusegun Obasanjo, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, it became perfectly clear that the success of the Constituent Assembly was reasonably certain and assured. Then during the progress of the work of the Constituent Assembly, the author, as Chairman of the Constituent Assembly, was approached by the Head of the Supreme Military Council and Commander-in-chief of the Armed Forces of the Federation with a request that certain existing enactments some of the most important of which were (1) The Nigerian Security Organization Decree, 1976; and (2) The Land Use Decree, 1978 be adapted and incorporated to form part of the Constitution of the Federal Republic of Nigeria. In the course of discussion, the Head of the Supreme Military Council and Commander-in-Chief of the Armed Forces of the Federation was anxious that the request should be complied with because the Supreme Military Council did not wish the civilian government likely to be its successor to be able to have the laws amended with ease in the event it disagreed with some of their provisions.
In spite of the pressure exerted on the author to use his good offices to bring similar pressure to bear on the Constituent Assembly to comply with the request of the Supreme Military Council, the author refused to yield. He remained consistently adamant; but could only promise that, in accordance with Parliamentary practice and procedure, all he could do was to accept such enactments and exhibit the same on the high table of the Constituent Assembly at the same time drawing the attention of the members thereto. It would then be open to any member or members of the Assembly sufficiently interested, to call for a debate over the enactments. Otherwise, the Decrees would continue to lie on the table of the House.
Having become aware of the attitude of the members of the Constituent Assembly in relation to the enactments which were completely ignored, the Supreme Military Council on its own volition decided to have those enactments, including the Nigerian Security Organization Decree, 1976 and the Land Use Decree, 1978 entrenched in the Constitution of the Federal Republic of Nigeria, 1979 as a means of protecting them from irrational amendments and thereby accord them perpetual existence. Thereupon the enactments were inserted as forming part of the Constitution.
Where Do We Go From Here?
The next question I like to address is: Where do we go from this point in our search for political stability in order to preserve our heritage and goal of Nigeria, united as a single political entity. The answer appears to me to be simple enough. We go back to the people. The rationale for this has been explained with characteristic lucidity by Professor Ben Nwabueze, who is an acknowledged authority on our Constitutional Law and Constitutional History. These are his words in a Speech he delivered at a meeting of Delegates from the Six Geo-Political Zones held in Abuja on 29th and 30th may 2001.
Surely, the power of the sovereign people of Nigeria to make a constitution for themselves or to change it cannot have been taken away by the provisions in the 1999 Constitution for constitutional amendment. The mandate conferred on the President and members of the National Assembly by their election is only a mandate to govern under and in accordance with the provisions of that Constitution, and to make, as may be necessary, such changes in them not affecting the fundamental structures and principles of the system of government established by the Constitution. It is a limited mandate, and is not meant to substitute the government for the people as the repository of constituent power. The constitutional amendment provisions should not be read without regard to the limitation implied by the universally accepted convention underlying them.
To put it in another way: If at any time, the majority of the people of this nation become satisfied that in order to maintain the very existence of our country as a single political entity, or to ensure its survival and preserve its unity we have to make radical changes in our system of government, then it is the natural and inalienable right of the people of Nigeria to write or rewrite for themselves a Constitution for the governance of the people of Nigeria. This is the reason why many of us have urged for the convening of a Conference of ethnic nationalities and linguistic groups comprising this nation for the purpose of formulating proposals for a system of government acceptable to all. Such proposals for a system of government acceptable to all should be put before the people of Nigeria in a referendum for ratification or otherwise. Once ratified, the proposals become the Constitution or basic law of this nation.
In view of the unnecessary confusion, which has been introduced into the debate over this question of a National Conference, it is necessary to emphasize the fact that it is the verdict of the majority of the people at a referendum that will give legislative force to the proposals of the National Conference. That being so, the question whether or not the proposed Conference is a Sovereign National Conference does not arise. The question whether or not the people of Nigeria can give to themselves a Constitution whereby they wish to be governed is not, in my opinion, open to debate. I wholeheartedly align myself with those who call for a National Conference.
Dangers of Complacency
It is of the uttermost importance to observe that serious obstacles must be surmounted in the course of our search for political stability. These obstacles will not emanate from people well versed in their knowledge of History and the problem of establishing a system of government for a multi-ethnic and multi-linguistic Nation. Rather, the obstacles will most certainly emanate from those among us who are highly optimistic because they are completely oblivious to the enormity and depth of the problems involved. These are the type of people who will tell you either that there are no problems whatsoever, or that the only problems are with those who are putting forward proposals for a National Conference or, finally, that if there are any problems, however apparent, all that you need to do is to fold your arms, “siddon look” and the problems will simply go away and disappear into thin air.
Nigerians must not allow those who belong to the Complacent Group the “Siddon Lookers” among us to lull us into a false sense of security. There are a number of issues in our present system of government, which requires radical reconsideration in order to meet the aspirations and expectations of the various ethnic nationalities and linguistic groups in this nation. For the purpose of this lecture it is not necessary to discuss these issues in detail. It is sufficient to name some of the important ones. They include the following:
- Is the existing 36-State structure conducive to the realization of the economic and social development of the various peoples of our Country?
- What changes should be made in the Constitution so as to ensure that in the practical operation of our system of government, no ethnic or linguistic group is or is perceived to enjoy preferential treatment when appointments are made to important offices of State, including appointments in the Armed Forces, the Police, and national security agencies?
- What are the functions of government, which are really and truly necessary to be surrendered to the Government of Federation by the federating units of ethnic nationalities and linguistic groups?
- Is the existing constitutional arrangement for the management and control of natural resources within Nigeria as well as offshore resources satisfactory and acceptable to all concerned?
- Should our Constitution permit any of the Governments comprising the Federal Republic of Nigeria to enforce the strict rules of the Sharia as part of the Criminal Law of its territory and if so, to what extent?
The five matters listed above are issues which go to the root of our consensus to remain and associate as Nigerians in a single political entity under a federal system of government. They are matters which go beyond the competence as well as the mandate of the National Assembly or any of our Houses of Assembly constituted under the 1999 Constitution to tackle. This is why all the issues in question ought to be brought before a National Conference to be convened as soon as possible. To ignore the call for a National Conference is to ignore serious defects in our system of government, any of which can lead to the disintegration of our Nation. If anyone endangers the survival of our country as a Nation, it is not those who call for a National Conference. It is the Complacent Group the “Siddon Lookers” who oppose it.
The Quality Of Leadership
Nigeria cannot hope to survive as a nation unless it is able to produce leaders of the right quality and calibre to guide its affairs. This is true of all countries. A Constitution, which fails to throw up the right type of leaders from time to time, may well be regarded as inadequate for one of the most vital of the objectives it is designed to achieve. On the other hand, the Constitution does not make the leaders. It merely lays down the rules for their selection and the regulation of their conduct and activities as trustees of power within the State. A Constitution, however perfect, cannot be regarded as a computer for selecting the most capable leaders to conduct the affairs of State. The democratic system ensures that the selection shall be made by the people themselves or by their accredited representatives, and in this sense; the ultimate responsibility for ensuring quality rests with the people. Any failure to choose persons of the right quality must therefore be the fault of the electorate and not of Constitution. The Constitution can help by providing for the disqualification of persons who have been found guilty of offences involving corruption or dishonesty from being elected or appointed to the legislature or other public office. The problem of ensuring the selection of leaders of quality is, in my view, intimately bound up with that of seeing to it that the electorate is given all possible help and facilities to exercise enlightened judgment. This implies that development in the field of education must be accelerated.
A Constitution ought, however, to ensure, as far as it is humanly possible to do so, that tendencies or activities which are likely to work against national interest, the stability of the government and the maintenance of the principles of justice and fair play are effectively checked. The actual machinery for these checks must be relevant in the context of the country concerned otherwise it will not function properly. The Constitution ought also to ensure that the custodians of power remember always that they are trustees of power for a limited time and that the public at large (and not a political party or a few individuals) are the true owners of the great powers of State entrusted to them. In a plural society, such as Nigeria, constant attention must be paid to inter-community relations or inter-ethnic relations and causes of friction and hostility must be identified and cured or removed. It may well be that this kind of exercise will require the making of some institutional arrangement free from political direction or control but dedicated to the promotion of national unity and the fostering of national loyalties. In my opinion, nothing would be more dangerous than to ignore the problem of inter-communal relations in a plural society.
I am convinced that the task of devising a satisfactory Constitution for the purpose of establishing a democratic system of government in Nigeria is not beyond human ingenuity. A National Conference of ethnic nationalities and linguistic groups convened for the purpose of working out a satisfactory system of government for our beloved Nigeria must be convened without delay. The Agenda of the Conference is to identify and tackle the issues, which must be resolved so that all Nigerians can continue to co-exist in peace and harmony. In that task, a good deal will be learnt from the experience, the successes, as well as the mistakes, of the past. We must persevere. And we shall overcome! Some day!
I thank you all for listening