by Eric Teniola

Except for them to queue and vote every four years, the 1999 constitution has no role for the people. It is not fully representative.

Since 1966, Nigeria has operated only two constitutions – the 1979 and 1999 constitutions. The 1979 constitution, which was Decree No 25 enacted into law on September 21, 1978 by General Olusegun Obasanjo, became operative on October 1 1979 but was suspended by Major General Muhammadu Buhari when he overthrew President Shehu Shagari’s government on December 31, 1983 through Decree 1.

The 1979 constitution was produced by Justice Egbert Udo Udoma (1917-1998) with input from the constitution drafting committee headed by Chief Rotimi Williams (1920-2005). Justice Udo Udoma was the Chairman of the 1978 constituent assembly.

The 1999 constitution was produced by Justice Niki Tobi who was Chairman of the 1998 constitution debate committee. The 1999 constitution, which we still operate, is Decree 24 and was promulgated into law by General Abdusalam Abubakar, on May 5, 1999 and has become operative from May 29, 1999 till date.

Niki Tobi was deputy Vice- Chancellor and Dean, Faculty of Law, University of Maiduguri until April 22, 1985 when he met his old lecturer, Justice Adolphus Karibi-Whyte at the VIP lounge of the Murtala Muhammed Airport, Lagos. At the time of the meeting, Justice Karibi-Whyte, who had earlier taught Niki Tobi at the University of Lagos, was the chief judge of Rivers state.

The outcome of the meeting changed the destiny of both men. For, during the meeting, Justice Karibi-Whyte invited Niki Tobi to leave the academic world and join the judiciary, an offer he could not refuse.

Niki Tobi’s wife begged her husband not to accept the offer because she loved the serene life at that time in the Kanuri capital in Maiduguri.

And so on July 22, 1985, along with his two friends, F.F. Rubai and St K. Sagbe, Niki Tobi was sworn in as Judge in the Rivers State Judiciary.

Born on July 14, 1940 at Esanmi in Bomadi local Government Area of Delta State. Niki Tobi rose to the Court of Appeal in 1990.

While serving in the Court of Appeal in Enugu, he was appointed to head the Constitution Debating Review Committee in 1998. I knew him at that time, for he would stroll in quietly to see my then boss, Alhaji Gidado Idris, who was then the Secretary of the Federation on the Eleventh Floor at the Federal Secretariat, Abuja, to discuss the progress of his committee’s work and other logistics.

With a file in his left hand, and accompanied by a police orderly, he would go in to see Alhaji Gidado Idris and depart quietly.

He became a Justice of the Supreme Court in 2002 to replace his old teacher, Justice Karibi Whyte. On July 14 2010, Justice Niki Tobi retired from the Supreme Court and up till today, along with the former Chief Justice of the Federation, Justice Katsina Alu, his colleagues at the Supreme Court have not accorded him the traditional valedictory session. I am told he has retired to Yenagoa with his wife. He is said to be having eye problem.

Justice Niki Tobi’s scholarship is not in doubt and his service to this country is appreciated but the 1999 constitution that he produced is today corrigenda, meaning a list of errors and imperfections.

While Constitutions of other countries went through referendum or plebiscite, our own did not. Even in our next-door neighbour Niger, the constitution there recently went through a referendum before being adopted. Ours did not go through such.

Same with the constitutions of Egypt, Zimbabwe, Canada and many other countries.

Referendum is the gerund of the latin verb refero, and has the meaning “bringing back” (i.e. bringing the question back to the people). The term plebiscite comes from the Latin plebiscite, which originally meant a decree of the ConciliumPlebis (Plebeian Council), the popular assembly of the Roma Republic. Today, a “referendum” can also often be referred to as “plebiscite”, but in some countries they refer to different types of votes, differing in their legal consequences.

There was no input by the people on the 1999 constitution. It was produced and forced on us. And the way and manner it was done, is as absurd, slacking and desultory as the contents of the constitution itself.

Let’s go back to how it was produced.

General Sanni Abacha(1943-1998) died in 1998 and in a session by the Armed Forces Ruling Council, a few hours after his death, General Abdulsalam Abubakar emerged as the head of state. On July 7 1998, Chief Moshood Kashimawo Olawale Abiola(1937-1998), the acclaimed winner of the last Presidential election died suddenly in detention. Upon the recommendation of his then deputy, Vice Admiral Mike Okhai Akhigbe, General Abdusalam appointed Retired Justice of the Supreme Court, Justice Ephraim Omorose Ibukun Akpata(1927-2000) as the Chairman of the Independent Electoral Commission in October 1998. Justice Akpata then rolled out his time table for the elections and the approval for the formations of political parties.

On November 2, General Abdusalam Abubakar appointed Justice Niki Tobi as Chairman of the Constitution debating Committee and inaugurated the committee on November 11.

In December 1998, local government elections were held across the nation on party basis and that was how the PDP kicked off leading other parties with success in local government elections.

On February 13, 1999, governorship elections were held throughout the country. On February 20, 1999 the National Assembly’s election were held and on February 27, 1999, the Presidential election was held and Chief Olusegun Obasanjo scored 18,738,154 as against Samuel Oluyemi Falae of Alliance for Democracy/ All People’s Party who scored 11,110,287 votes. The inability of the APP led then by late Senator Mahmud Waziri, my good friend, to sponsor a Presidential candidate of its own destroyed the party and since then the party never recovered. As at the time Presidential election was held in the country there was no constitution. Justice Niki Tobi submitted his committee’s report on April 22 and the Armed Forces Ruling Council ratified that report on May 3 while General Abubakar promulgated it to a constitution on May 5. President Olusegun Obasanjo was sworn-in on May 29, 1999. A clean copy of the constitution was not even ready until after President Obasanjo and the governors were sworn-in. I remember, in the absence of the Federal Government Press, and at the mercy of the HERITAGE PRESS, privately owned, in Abuja, the company worked nonstop on the night of May 28, 1999 to make sure few copies were produced so that President Obasanjo could hold one at his swearing ceremony at Eagle’s square in Abuja.

In short, Niki Tobi’s committee worked for less than 155 days to produce the constitution. It is unfair for a country with 36 states excluding the Federal Capital Territory of Abuja, 774 local governments, over 300 tribes and over 2000 pressure groups, to have a constitution of that magnitude produced within such a period. Niki Tobi’s committee visited just few states, stayed most of the time in Abuja, held public hearing just for few days, compiled its report and submitted, thinking that members of the Armed Forces Ruling Council would not approve most of its recommendations. Only a few memoranda were entertained by the committee. Justice Niki Tobi’s committee based its report mostly on the contents of the 1979 constitution and the unapproved report of the Karibi- Whyte constituent assembly inaugurated under the previous military era. The death and manner of how General Sanni Abacha and Chief Abiola died must have frightened General Abdusalam Abubakar to hurriedly approved most of the recommendations of Justice Niki Tobi so as to quit power and enjoy his retirement. He spent less than eleven months. We were all gripped too by the euphoria of campaign and elections followed and we forgot about the constitution.

Joseph Marie wrote that Toute nation a le gouvernement qu’elle merite meaning “Every nation has the government it deserves”, but I do not think we deserve this constitution. Unlike the 254-page 1979 constitution which was properly edited and rearrange by a legal team headed by Honourable Justice J.H. Omololu Thomas, the 1999 constitution contains a lot of contradictory affirmations. And what is a constitution anyway?

While representing Ideato/Nkwere/Isu, Dr. Kingsley Ozumba Mbadiwe (1915-1990) told the constituent assembly on November 16, 1977 that a constitution “is a commandment under which a country is governed”. It is an injunction, a mandate and a behest under which a nation is administered.

A constitution is designed to make sure that the country belongs to all its citizens.

I mean all citizens irrespective of class, tribe, gender or religion. Our 1999 constitution only enriches the President, the governors, the legislators and their aides.

Adam Smith wrote that “no society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable”. Except for them to queue and vote every four years, the 1999 constitution has no role for the people. It is not fully representative. My mathematics teacher once told me that a curve line can never be straight. If we are to move and progress as a nation, this constitution must not only be amended but must be rejected. Efforts must be made to produce a new one that is fully representative and will accommodate the interest and feelings of all Nigerians.

It is not too late.

 

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Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.