Nigerians have a penchant for amending the Constitution. Incidentally, the first constitution in Nigeria was not for the whole country. The Clifford Constitution was for the colony of Lagos and Protectorate of the Southern Nigeria. That was in 1922. The Northern Protectorate at that time was under the Native Authority system whereby it was the Emirs who were in control, not only of the administration of their emirates but also of the Police and the Judiciary. In terms of constitution in book form, the first was the Clifford Constitution for the Colony of Lagos. I am emphasising the Colony of Lagos because Britain had three colonies in Nigeria. The first was the Lagos Settlement in 1862. By the end of the 19th Century, it had become Lagos Colony. Then 1st January 1900, Britain added two more colonies in modern-day Nigeria, the Protectorate of Northern Nigeria and Protectorate of Southern Nigeria, making three. Lugard was the Governor of Lagos Colony and Protectorate of Southern Nigeria in 1912 when he was preparing for amalgamation. He was at the same time Governor of the Protectorate of Northern Nigeria. In his time, there was the so-called amalgamation in 1914, but he had the officer next to him in rank who was in favour of the division of Nigeria into six, which if that had been done, if that proposal had won the day instead of amalgamation which was Lugard’s baby, the problem we are having today could not have been there. If that proposal had been agreed to, Nigeria would have consisted of not two or three North and South, but six. That was the beginning of what people called six geo-political zones. That would have solved our problems, if we had six instead of two or three zones – Northern Protectorate, Southern Protectorate. Lagos colony was administered separately from the Southern Protectorate administration, although it was the same officials of the Southern Protectorate presiding both.
Richard’s Constitution
After the 1922 Constitution, the next one we had was Richard’s Constitution and that was in 1944/1945. Sir Authur Richard became Governor and was honoured later by Sir Milverton. Milverton was the first British official to bring the country under the same legislative umbrella. He retained three elected members: one from Calabar, and five nominated members from the Northern region. The protectorates had now become regions, every inch like the Northern Protectorate. The Southern Protectorate was split into two, the Western Region and Eastern Region and the Colony of Lagos. Five were nominated from the North, five from the East, five from the West and three elected from Lagos in 1946/1947.
Macpherson Constitution
Richard was succeeded by John Macpherson in 1948. At that time, the colonies were agitating for independence. India had become independent and was split into two. In Africa, there was a groundswell, especially in British West Africa at that time. So, Macpherson had his own constitution in 1950. He retained the essentials of Richard’s Constitution. In 1954, Federalism was introduced into the country and our political system. There was a set of legislative subjects which were assigned to the Federal Government. There were sets of subjects assigned to the regional governments, North, West and East. Because of the agitation by some people in Yorubaland that Lagos was largely peopled by Yoruba-speaking citizens, it ought to come to the West. What the British Government settled for was to say the City of Lagos, that is Lagos Island, Ebute Metta, Yaba, with the boundary just before Orthopedic Hospital. That was the City. Surulere was bush at that time. The city to us at that time was Yaba. That was where civilisation stopped. Apapa had been acquired by the British from the Oluwa Royal Family or Chieftaincy Family in 1913. Then, Ikoyi, Victoria Island was underwater at that time. There was no habitation except a little part from Onikan, over MacGregor bridge along Sadauna Street. So, it was for holidays and picnics. Only very few buildings – Dr Maja’s Holiday Resort and a few buildings along the path. So, that was Ikoyi and of course, Lagos City. The rest of Lagos Colony, Lekki down to Epe, Badagry Ikeja and Ikorodu were merged with the West.
Beginning of federalism
Under the constitution at that time, the Federal Government had a list of functions in the Exclusive Legislative list that it must perform. The Exclusive Legislative list comprised 43 functions. That was the list of functions exclusive to the Federal Government. That is the essence of the Federal system of government. The components have their own functions to perform.
The federal body has its own function to perform. There is a concurrent legislative list of which functions the Federal Government could perform and states or regions could perform – about 34 functions. The interesting thing is that the federal legislature would only make laws for peace, order and good government of Nigeria in respect of this Exclusive Legislative list. The regions could not do that or anything there because it is exclusive to the Federal Government.
Independence Constitution
The 1960 Constitution – Independence Constitution – had 44 exclusive items to itself. Only the Federal Parliament would pass laws on them. In 1963, when Nigeria became a republic, the Exclusive legislative list went up to 45. State governments were excluded from passing laws. Remember that the essence of federalism is that we states cannot exercise all the powers. There are certain powers like arms and ammunition, and banking which we must recede to the federal authority or central authority. Then you have a concurrent legislative list. Tourism for example, the federal can pass legislation on tourism, Lagos State Assembly or the Borno State Assembly can pass legislation on tourism. But if there is any conflict between the federal and states, the federal will take over. Any other function of government is what we call Residual Power. Section 4 (7)(a) of the Constitution, whether 1963, 1979 or 1999 says the House of Assembly of a state shall have powers to make laws for the peace, order and good government of the state in respect to the following matters, that is to say, ‘any matter not included in the Exclusive Legislative List set out in the schedule’. That’s what they call Residual Power.
Read Also: Case for ditching 1999 Constitution
Any problem with 1999 Constitution?
I am not a fan of the 1999 Constitution. I am a fan of the 1963 Constitution with General Gowon’s modification of 12 states. But we can’t return to the 12-state structure? Unfortunately, that is where our problem started – the creation of states. My preference is the 1963 Constitution with a 12-state structure. That one also has its own political implications. Chief Awolowo was one of the critics of the size of Northern Nigeria in the federation. The North was too large and the population was said to be 50 per cent or slightly more, dominating the federal system and that negates the federal system of government.
No unit should be too large in size and population to dominate all the others. That informed Gowon’s issue of splitting the North into six states. People don’t give Gowon the credit that he deserves. He couldn’t just create six states out of the mighty North. There was extensive consultation, using Hassan Katsina. Hassan Katsina was the son of the Emir of Katsina. These are people whom he used to persuade the North to break the mighty North into six.
Are 36 states a problem?
We don’t need 36 states in Nigeria. That is the problem we have that we have to solve. But you can’t turn back the hands of the clock. That is the dilemma. So, the problem is with all operators of the Constitution. Not the papers. The problem is with the people and the demand for more states. That is the problem we had. It is the operators of the constitution. It is those who operate the constitution. Now, what has happened over the years with these legislative lists which I have called your attention to? The issue is not the constitution. I agree it is not perfect. There are many holes there. There were many holes in the 1979 Constitution. The 1999 Constitution is a replica of the 1979 Constitution. Remember that I was lucky to be one of those who drafted the 1979 Constitution. But in the Constituent Assembly which followed the Drafting Committee set up by Murtala Mohammed before he was assassinated, he appointed 50 members. Chief Awolowo said, ‘Count me out’. So, 49 of us drafted, not the whole, of what became the 1979 Constitution.
However, the Obasanjo administration excluded some major recommendations in our draft report. For example, revenue allocation. We recommended the continuation of revenue allocation contained in the 1963 Constitution, which was 50 per cent of the revenue derived from the sale of cocoa should go to the Western Region and part of the newly created Mid-Western Region where cocoa was grown, 20 per cent to the federal government. The remaining 30 per cent should be in the distributive pool to be distributed amongst all of them whether you produce cocoa or not. Palm kernel in the Eastern region, 50 per cent to the East, 20 per cent to federal and 30 per cent distributive pool. Cotton, groundnuts, Tin, 50 per cent to the North, 20 per cent to Federal and 30 per cent distributive pool. These are areas that we should look into for solutions to our problems. Not having this jamboree of the constitutional conference. Obasanjo’s government, in the final draft of 1979 Constitution, put zero and the National Assembly should vote on how the profit should be shared, instead of our recommendation that what was in the 1960 and 1963 Constitutions should remain. He left it ajar for the National Assembly to decide. When Abacha got there, in his own time, he left it at 13 per cent for state of origin and not 50 per cent as before. And that was what the Mobilisation Committee recommended. So our problem is one, having more states, creation of states. The creation of a state is not the answer to the financial and economic problems Nigeria is facing. We are all living witnesses to what happened in creating and dividing the western state into Ekiti, Ondo, Osun, Oyo and Ogun. See the problem of supremacy between the Alaafin of Oyo and the Ooni of Ife. You are creating more problems for yourself. Instead of remaining as Western State and making a beauty of it, or Ibo speaking, instead of remaining as East Central and making a beauty of it, you cut it into Abia and Imo, Enugu and so on. Now, each of these states must have a governor. The governor must have his executive council, his commissioners, more money which should have gone into health and education, roads, agriculture and so on. Money for housing, you now spend it on Commissioners, House of Assemblies and all of that. These are the problems Nigeria is facing, not the constitution. We’ve had enough of constitution-making.
On the way out
The way out is restructuring. Our problem is partly because the Federal Government has stolen some of the powers and functions of state governments. I speak with experience. All these constitutions, for instance, look at the Exclusive Legislative List, they are functions and powers exclusive to Federal Government. In the 1960, 1963, 1979 and 1999 constitutions, there was no housing and lands there. There lies the problem Nigeria is facing. Federal Government stealthily acquires functions which are residual under Section 4(7)(a) of the Constitution. Residual matters fall within the jurisdiction of State House of Assembly. Restructure. Go back to what the Constitution says. The Federal Government has stolen functions which belong to the state assemblies.
Way forward
Let’s get to the bottom of the problem before we look at the solutions. That is why I say I differ from my very good friend who was talking about subsidiarity. The 1979 Constitution had no housing and no land for the centre. I was the Federal Commissioner for Housing for almost eight years. Which housing estate can you remember me building on behalf of the Federal Government in Gowon’s government? None because lands belong to state governments, not federal.
What to do with 1999 Constitution
It is for the public to ensure that the Federal Government keeps within the law of the constitution – the boundaries set out in the exclusive legislative list. Primary and secondary education is not on that list. It is for the states. The Navy has primary schools; the Army has primary schools. What are they doing with it? Where do they get the money for it? Money for other things on the Exclusive list or those taken from the mobilisation fund?
Also, the Federal Government doesn’t have land. But right now, we have a Ministry for Housing and Physical Planning. It is those who have land that can plan. The Federal Government has no land. Hence Ministry for Housing and Physical Planning is not necessary. It is not constitutional. What we did in my time under Gowon was to draft a request for Physical Metropolitan Planning for Lagos Metropolitan. UNDP promised to assist us. What my ministry did was to assist the Lagos State Government in those days to get this agreement through to the UN to provide funds and personnel for the physical planning of Lagos but not the whole of Lagos State. There is a Federal Land Registry in Ikoyi and that was part of the problems created by Obasanjo. This present government also now has a Ministry of Housing. Apart from Abuja, where do they want to build houses? Land is not in the Concurrent list.
On whether 1999 Constitution should be ditched or amended
Those operating the constitution and the legislature are our problems. It was reported that the members of the Senate and House of Representatives bought SUV cars for themselves. They said it was because the roads were bad. How about you? How about me? They are the same roads that previous governments had ignored.
No need for another conference
If you call another conference, it will be taken over by state agitators. Take Lagos for example. Some years ago, my friend, the late Babatunde Benson (SAN) was one of them who wanted Lagos to be further divided into two. They wanted another state, Lagoon State from the present Lagos. The late Babatunde Benson was one of the promoters of Lagoon State. So, if you call another conference, this is what it will bring forward. For goodness sake, let us all join hands to tell the Federal Government this is your boundary. Not this (agitation for a new constitution).
