Four Frauds That Are Fatal For The 1999 Constitution Or Why The 1999 Constitution Must Be Jettisoned By Chinweizu.
These fatal frauds are 4: the “We the people” fraud; the “Federation” fraud; the “Fighting corruption” masquerade/fraud; and the “Socially responsible State” masquerade/fraud. Let’s examine them.
1. The “We the people” fraud
On the 23rd of May, 2007, the Movement for a New Nigeria (MNN) launched a legal attack on the 1999 Constitution by filing Suit No. FHC/ABJ/CS/367/07 in the Federal High Court, Abuja and, in 2009, Suit No. FHC/L/CS/558/09 before the Federal High Court, Lagos Division, seeking the termination of the operation of the 1999 Constitution on the ground that it is a forgery and a fraud in that it was made via Decree by one ‘Gen. Abudusalami Abubakar’ who lied in the preamble that ‘We the people of Nigeria….’ made and enacted it.
The Plaintiffs in the Suits included Chief Anthony Enahoro, Dim Chukwemeka Ojukwu, Chief C. C. Onoh, Prof. Wole Soyinka, Prince Bankole-Oki (SAN), Bishop Bolanle Gbonigi, Alhaji Yerima Shettima, Alhaji Asari Dokubo, Chief Ralph Uwazuruike and Fred Ageyegbe, Esq. The case, I understand, is still languishing in court, a victim of endless adjournments.
2. The “Federation” fraud
Its federalism is a fraud because:
(a) It falsely parades Nigeria as a federation whereas Nigeria ceased to be a federation in 1966, with the abrogation by the military of the 1963 federal constitution.
(b) With the demobilization of the earlier federating units, its present states, the alleged federating units, have no constitutions of their own, making them false federating units;
(c) It lacks fiscal federalism: its behemoth Central Govt. (falsely called “Federal Govt.”) takes for itself a lion’s share of the country’s resources and gives crumbs to the 36 states and the 774 Local Governments; they are thus not economically self-reliant entities but subsist on allocations from the Central Government; they are, consequently, mere economic dependents and administrative agents of the Central Government—which is contrary to federalism;
3. The “Fighting corruption” masquerade/ fraud
The 1999 Constitution is the Godfather of corruption, through the immunity clause 308. (1), which protects, and thereby implicitly invites, looting by the highest officials who have brazenly set the terrible example that the rest of society have emulated. However, it ostentatiously declares in Section 15. (5) that “The State shall abolish all corrupt practices and abuse of power”, thus giving the false impression that it is for fighting corruption. But it then surreptitiously annuls Section 15.(5) by its ouster clause (See fraud #4, discussed next) It is a fraud for the Godfather of corruption to give the impression that it is against corruption, and the fraud is compounded when it empowers the State to fight corruption but then surreptitiously discourages it from doing so. That’s double duplicity!
4. The “Socially responsible State” masquerade/ fraud
The 1999 Constitution surreptitiously relieves the Nigerian State of the customary and fundamental responsibility of a state for the welfare and security of the people it rules: This is done by technically annulling the obligations clearly and ostentatiously stated in its own “Chapter II: Fundamental Objectives and Directive Principles of State Policy”. Chapter II is surreptitiously ousted in Chapter I, by section 6. (6)(c) thus:
(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
This is the ouster clause, since nobody can go to court to enforce any Ch. II provision. That is to say, if the government omits to act on Ch. II, it cannot be sued by anybody or be compelled by any court to do its constitutional duty. This clause, by making Ch. II non-justiciable, effectively makes it unenforceable, thus ousting it.
This covert ouster allows the Nigerian state to masquerade as a socially responsible state whereas it is no such thing. This masquerading gives it false legitimacy, and is a fraud.
Among the fine-sounding Ch. II provisions hereby ousted are the following admirable principles and laudable objectives (in bold):
13. It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.
14. (2)(b): It is hereby, accordingly, declared that the security and welfare of the people shall be the primary purpose of government:
14. (5): The State shall abolish all corrupt practices and abuse of power.
16. (2)(d): The State shall direct its policy towards ensuring that suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and unemployment, sick benefits and welfare of the disabled are provided for all citizens.
Ch. II was introduced in the 1979 prototype of the 1999 Constitution. But despite these clearly stated obligations, none of Nigeria’s governments have felt constitutionally compelled to fight corruption or abuse of power, none have felt constitutionally compelled to provide security or welfare to the people; and it has been constitutionally impossible to take them to court for these failings. Finding themselves protected from legal action, they have boldly and brazenly done their utmost to deny Nigerians even minimum social welfare, to inflict chronic insecurity on them, and to block the possibility of even minimal prosperity to most of the Nigerian population. They have thereby delivered hell to Nigerians and done so with an impunity conferred by that covert and technical ousting of Ch II which is still unnoticed by most people. Their infliction of rampaging corruption is known to the whole world. So let us briefly examine and quantify their not-so-well-known record of inflicting impoverishment and insecurity on the Nigerian population.
Wholesale impoverishment of Nigerians quantified:
Here are the figures. According to the Nigerian Government’s own “African Peer Review Mechanism Country Self-Assessment Report (CSAR) for 2007”, paragraph 88: in 1960 (the year Nigeria attained independence, which was also the year it began to export crude oil) the poverty level was 15% of the population. In 1980, (after 20 years as one of the world’s major oil exporters) the poverty level had risen to 28% of the population. In 1985 it had risen to 46%, and to 65% in 1996. In other words, despite its huge inflow of oil revenue, Nigeria’s poverty level had steadily risen from 15% of its 45m population in 1960 to 65% of its 112m population in 1996. That is from the Obasanjo Government’s own self-assessment report for 2007: from what better horse’s mouth could this have come?
We should note that, since it is the refined combination of both its prototype, the 1979 Constitution, and the set of military decrees by which Nigeria was ruled between 1966 and 1999, this 1999 Constitution has, in one version or another, been Nigeria’s operative constitution from 1966 till today. That means that it was the de facto constitution during 30 of the 36 years, 1960-1996, when the escalating poverty level documented in that CSAR took place. That fact probably makes the 1999 constitution the world’s most effective poverty multiplying mechanism of the 20th century. (The Guinness Book of Records should please take note!) That alone is more than sufficient justification for Nigerians to get rid of it before it gets rid of them. If they don’t discard it now, the poverty level could reach 99% by 2020!
The irresponsibility and impunity granted the Nigerian state by the technical ousting of Ch. II is manifested, not just in the impoverishment of most Nigerians (quantified above), but also in trigger-happy massacres by state agents. Here are some
Major massacres of Nigerians by the State since 1966:
1977: Soldiers burn down Fela’s Kalakuta following his boycott of Festac 77.
1978: The military Govt of Lagos State demolish Fela’s Kalakuta, while he was away at the Berlin Jazz Festival.
1980: Farmers in Talata-Mafara, Sokoto State, massacred following protests against Impresit Bakalori, an Italian Company.
1980s: Students at ABU, Zaria, and the OAU, Ile-Ife, killed by police on several occasions.
1999, Nov.: soldiers, deployed to the Niger Delta to protect the oil companies from citizens outraged by the devastation of their environment, sack Odi village, Bayelsa State, killing hundreds.
2001, Oct: Zaki-Biam, Benue State sacked by army, with more than 200 killed.
2009: The Nigerian Military’s JTF devastated villages in the Niger Delta, reportedly killing thousands in a bid to bring the Niger Delta militants to their knees. Nigerian lawmaker, Alhaji Bala N’Allah, was reported to have said at the time: “Nigeria can afford to waste 20 million people in the Niger Delta to save the remaining 100 million population.” This was a vehement statement of the genocidal intent of that JTF operation.
This list of major massacres does not include the countless victims of kill-and-go “accidental discharge” at checkpoints and demonstrations; or the numerous cases of judicial and extra-judicial executions conducted by state agents, most notoriously under Abacha.
All in all, the 1999 Constitution has been, and remains, a Guarantor of bad governance and the Mother of all evils in Nigeria.
These frauds are not victimless: In the last 50 years, they have had deadly consequences for the probably tens of millions of Nigerians who were impoverished or ruined in other ways and went off to prematurely die, unnoticed in the statistics. Some crowded the shantytowns, some lived under bridges, the lucky fled abroad to work at jobs; the most desperate and adventurous handed themselves to human traffickers to take them across the Sahara to seek survival in Libya and Europe, with many perishing along the way.
If you’ve ever wondered why corruption in Nigeria is so brazen and so unchecked by the authorities, or why “kill-and-go” police are never punished, or why kidnapping has become a plague in Nigeria ever since the official example was set in 2003, when an elected State Governor (Chris Ngige of Anambra state) was kidnapped by a privately hired police posse whose high-ranking organizer (A.I.G. Raphael Ige) went unpunished, but was merely retired with full benefits, you now know why: These crimes are licensed by the 1999 constitution which covertly removed the obligation of the state to prevent or punish them.
These frauds and their deadly consequences open up for discussion the question of the legality and democratic legitimacy of the 1999 Constitution and of the institutions based on it. We must make that issue a part of this National Dialogue. While the lawyers will have a field day arguing every conceivable side of this question, it is our duty, as the victims of these frauds, to give ourselves political protection by giving ourselves, without delay, a constitution that is not open to such frauds, doubts and endless debates. And for that we need to proceed with a political process for making a new constitution for ourselves, a Peoples’ Constitution. And the first step to that is to get on with the SNC.
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© Chinweizu 2013
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of SaharaReporters