As a legal layman and landlubber, the columnist hardly dabbles into controversies involving the timeless intricacies of the law. The law is a moody arbiter that can confer legality on illegality, and illegitimate the legitimate depending where the wind of power and class supremacy is blowing.
As a columnist for Newswatch in the roaring eighties, yours sincerely got a severe reprimand from a serving Supreme Court justice who wondered aloud how an ordinary teacher of Literature could teach his lordships how to dispense justice. Now we have come full circle.
If his lordship from Edo State is still alive, he would have known that something nasty has finally hit the ceiling fan. There are times when one cannot resist plotting a nation’s path away from perdition, particularly if the path is entangled in urgent calls for a constitutional review of the nation’s organizing principle.
Those who are adept at reading the national mood swing and the ever shifting tempi of political engagement ought to have noticed this development. After the epic battle of legitimation and delegitimation following the February 25th presidential election finally ran its course, attention is gradually shifting to another theatre of the political arena.
It is the renewed battle for constitutional order which has been a recurring decimal in the country’s political evolution, particularly in the post-independence epoch. In the past fortnight, the nation has witnessed some urgent calls from some quarters for a new constitution to replace the extant one which is no longer fit for purpose.
When stripped of jargon, many of these calls for a total constitutional makeover of the country are also a subtle ploy to delegitimize or even de-constitutionalize the current administration by capitalizing on its unforced administrative errors and political mistakes.
But to do that, we will have to delegitimize the entire Fourth Republic on which the political structure stands. There are no two ways about it and this is why a lot depends on the subsisting hegemonic coalition at the centre and the forces in contention.
In a fundamentally paradoxical manner, the coalition cobbled together by Senator Bola Ahmed Tinubu has driven a deep wedge into the heart of the old amalgam of progressives, equal opportunity freedom fighters and activists alike. It is very difficult to see how they can regroup soon enough to trouble the new administration, unless new forces are spawned by galloping social contradictions ignited by hubris and overconfidence.
Constitutional amendment always depends on the stage the political and historical dialectic has reached and the subsisting balance of forces. In advanced democracies the sure fire strategy of the ruling class is to wait and see until there is a clear, unmanageable cleavage in the society: If it ain’t broke, don’t fix.
It is to be noted that all the major constitutional reforms undertaken in the US and by leading western democracies in the last one century have been as a direct response to pressure from below by furious mobs and affronted patron saints of the political underground. When it comes to constitutional reforms that benefit the whole of the society, the streets have always seized the state by the scruff of the neck, depending on the cataclysmic political momentum they can muster.
In Britain, the long drawn campaign to enthrone and enshrine adult suffragette and the right of women to vote in the constitution as well as the murderous Sinn Fein insurrection to compel devolution of power in unitary Great Britain come to mind.
So do the age-long civil rights movements in America which culminated in major constitutional changes as well as the disruptive students’ upheavals in the late sixties in France which upended the authoritarian rule of General Charles de Gaulle. In the original American constitution, the Blacks were regarded as unmentionable sub-species of humanity that could not vote or be voted for. The avatars of the civil rights movement and their heroic foot soldiers changed all that.
As experience has shown in Nigeria and most other African countries, no government will willingly divest itself of its sovereignty or surrender to the dictates of a constitution-making body unless such a government has been so badly weakened by a series of delegitimizing events that it was only in government and no more in power.
Such was the case with General Mathieu Kerekou in Benin Republic in 1989 when a coalition of civil society organizations brought the government to heel by declaring its sovereignty. Having lost the support of the majority of his military colleagues, the man famously feared for his occasional recourse to voodoo calisthenics to overwhelm his enemies could only watch as power slipped away.
Four years later in Nigeria in 1993 as the rage and revulsion occasioned by the annulment of the freest and fairest election in the history of the nation developed into an apocalyptic storm, General Ibrahim Babangida would proclaim that he was not only in government but in power.
Yet despite the bluff and bluster, it was obvious to the discerning observer that the basis of that power—his military constituency—was having ideas different from supporting a discredited dictator. It was just a matter of weeks before it showed its true hands.
What did it for Babangida was not the extant political parties created by him and famously dismissed by Chief Tony Enahoro as government parastatals but a covert alliance between regnant and ascendant civil and political society forces and a disaffected faction of the military. The two state parties, despite the utter nonsense of one being a little to the left and the other being a little to the right, retained fidelity to their founder and patron during the nation’s darkest hour.
When the chips finally came down and with the military state as homogenizing leviathan, the two parties showed their true colour: while the one to the right went completely rogue by insisting that annulment meant that no election ever took place, the one to the left sold its victory to military conspirators and endorsed an interim national government.
Whatever their internal differences and differentiations into competing ideologies, state parties will always be complicit with the state and its fundamentally conserving orientation, unless there is a major disruption from outside oppositional forces which alters the nature and composition of the state and which makes going forward impossible without a major constitutional reconfiguration.
It is with this background in mind that we must now come to the Fourth Republic and the current regime. Despite its manifest imperfections and having weathered the last storm, what we are witnessing is the rise and further rise of the Fourth Republic.
What its various interlocutors have failed to grasp is the fact that a subsisting regime is a reflection of the various forces in contention, including their strengths and limitations. Having failed this elementary test of perception, they often compound it with further errors of logic and political praxis.
Constitution making anywhere in the world is hardly a plebeian affair or a festival of the hoi polloi. It is essentially an elitist document, which, depending on the nature of the regime and the balance of forces in contention, either percolates down to incorporate populist yearnings or, like the American Constitution, is a bottom-up process in which delegates must reflect views from below.
But in order to show who is really in charge and to counterbalance any concession to unwarranted populism, the framers of the American constitution put in place an authoritarian and patrician senate as well as an electoral college which actually elects the president. It has been described as a form of democratic eugenics.
The grouse of numerous critics of the constitution of the Fourth Republic is the fact that it is an unapologetically authoritarian document without any concession to populist niceties. It is a reflection of its tumultuous circumstances.
Harried and harassed out of its wits, befuddled and completely demoralized but still holding the power aces, the military establishment was in no position to hold or initiate any country-wide consultation. All it wanted to do was to find the leverage to hand over power to its chosen successors and let them get on with the business of cleaning the mess they were leaving behind.
Unfortunately, the opposition itself was not in a better shape to mount any challenge at this point. Riven by internal dissensions about when enough was enough, crippled by struggle fatigue and the lack of a tradition of long-distance campaign against state violations of the right of the citizens and decimated by competing personal ambitions, they were ready to put up with anything from the military as long as the handover date remained sacrosanct.
The constitution was an accurate reflection of the forces at play and the subsisting balance of power. Let people not deceive themselves. Just as they have done with the annulment five years earlier, the military simply appropriated the people in a final slap of authoritarian contempt.
To be sure, it was an act of military overreach and overstretch to have prefaced the constitution with the gratuitous “we, the people” preamble. But this is nothing but an overstatement of insecurity.
In any case, there were those who argued that since the 1979 and 1999 Constitutions were sired from the same legal and political loins by very much the same set of actors minus one or two who had succumbed to biological coup d’etat, they simply assumed that the acquiescent people of 1979 were still very much there, Zango Kataf, Major Orkar, June 12, Abiola and Abacha notwithstanding.
Once installed in power, Obasanjo treated the pro-democracy movement with breezy contempt, even when he was beholden to many of their leading patriarchs while in jail. Even though he was very much aware of the stirring role of many of the gallant warriors of democracy in seeing off the military, he knew that the source and provenance of his second ascendancy lay solidly with his old constituency as well as new patrons in the reconstituted oligarchy.
The Owu-born general was also politically smart enough to engineer a fracture in the movement from which it is yet to recover. Obasanjo pooh-poohed the possibility of two sovereigns in a single state. This was why despite the prodigious resources and energies invested, the PRONACO conference came to naught. It was only when the wily general attempted to overreach himself through tenure elongation that the same forces that put him there organized his comeuppance.
There are interesting convergences between the current conjuncture and the Obasanjo post-military dispensation. The current administration is not a product of prodemocracy agitations. The prodemocracy rump and the various self-determination groups cannot be said to be behind Tinubu’s victory at the polls. It is not advisable for them to begin issuing orders about when and how to restructure the country.
The current administration is acutely aware of the spirited attempts by many of these groups to deny it of victory and to strip it of legitimacy after the election. It is not everybody who can act the unaffected statesman after warding off such hostile onslaughts. As we have seen with the events of the past twenty four years, a desirable goal when wrongly pursued will meet with an undesirable end.
Let us not put the cart before the horse once again. Constant reconfiguration is a precondition for national survival. But in circumstances of persistent elite rancour and mutual hostility, it can take forever until something gives. We have been perilously close to that tipping point.
Let the government temper its sullen resentment with some patriotic sufferance. In order to create the atmosphere of substantive elite compliance needed for a creative reconfiguration of the country, it is now imperative to have a post-election reconciliation and reapproachment.
Unfortunately, rather than create the condition for elite amity needed to push the country forward, we are witnessing attempts to push the nation to the brink of violence. With Labour stiffening in its adversarial posturing and the movement of Michael Imoudu and Hassan Sunmonu mutating into a primordial phalanx led by ethnic vagrants and barely literate thugs, the stage is being gradually set for an explosive confrontation.
It is going to be quite a thrilla in Abuja.
