Constitution amendment and citizens’ expectations – Dr.Muiz Banire SAN

As the National Assembly concludes the constitution amendment process triggered some few months ago, citizens’ expectations that were hitherto high would seem to have been dampened with the release of over 60 clauses slated for amendment without that affecting their main source of survival, which is the fundamental objectives and directive principles of state policy contained in Chapter II of the Constitution of the Federal Republic of Nigeria, 1999. It is not my intention to start an x-ray of the over 60 clauses proposed for amendment, but simply to focus on the elephant in the house that was not touched or simply avoided by the legislators.

This is so because the major expectation of Nigerians is in the promotion of security and welfare of the citizens. This is substantially captured under the fundamental objectives and directive principles in Chapter II of the Nigerian Constitution. Today, virtually all the challenges faced by Nigerians are provided for by way of solution in the said Chapter II of the Constitution. Regrettably, however, the proviso contained in Section 6 (6) c of the Constitution does not seem to permit easy realization of the objectives. Imagine how sweet it would have been for homes to be provided for the homeless, food to be provided for the starving citizens, quality health service to be available to the citizens. What about qualitative education for all? Employment for the unemployed and sound social security system for the vulnerable. All these and many more are what the fundamental objectives provide for. Thus, the actualization of the provisions must be of grave concern to all Nigerians. It is in this context that Nigerians expect the National Assembly to amend the stumbling provision alluded to above.

A careful examination of the provisions contained in the chapter will reveal the institutions that are expected to perform different obligations under it. Under the said Chapter II, where all these beautiful provisions are, five different institutions, so to say, are meant to observe, conform and apply the provisions. These are the Judiciary, the Legislature, the Executive, the media and the citizens. Each and every one of these is under such obligation. To what extent the various institutions have fared, is beyond dispute. Virtually all have failed in one form or the other. In order for us to appreciate the magnitude of this failure, I shall attempt to summarize these fundamental objectives contained in Chapter II of the Constitution, particularly Sections 18 to 24 thereof.

I will strive to make it as simple and elementary as possible but pardon me if I goof in some areas in this regard. Essentially, the Constitution provides in ten sections the fundamental basis of governance ranging from the non-subjugation of any ethnic group in the act of governance or leadership of the country; that the primary purpose of governance shall be the promotion of the welfare and security of the people; the people’s sovereignty as it relates to power shall be supreme; democracy as a mode of governance; reflection of federal character principle in the composition of government at all levels; freedom from discrimination on all grounds; promotion of patriotism; abolition of corruption; harnessing and distribution of the material resources of the nation to serve the common good; ensuring that the economic system is not operated in a manner that permits the concentration of wealth or the means of production and exchange in the hands of few individuals or of a group; provision of suitable and adequate shelter, suitable and adequate food, reasonable national minimum living wage, old age care and pensions, and provision of employment, sick benefits and welfare of the disabled; equality of all citizens before the law; independence, impartiality and integrity of the courts including access to justice; ensuring that the citizens have opportunity for securing adequate means of livelihood and opportunity to secure suitable employment; adequate medical and health facilities for all persons; evolution and promotion of family life; duty of government to strive to eradicate illiteracy; provide free and compulsory universal primary education, free university education and free adult literacy programme; respect for international law and treaty obligations as well as seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication; promotion of a just world economic order; protection and improvement of the environment; protection, preservation and promotion of Nigerian cultures; obligation of the mass media to uphold the fundamental objectives and uphold the responsibility and accountability of the Government to the people; national ethics ae prescribed to be discipline, integrity, dignity of labour, social justice, religious tolerance, self-reliance and patriotism; citizens to abide by the Constitution, enhance the power, prestige and good name of Nigeria, defend the country and render national service; declare income honestly to appropriate and lawful agencies and pay tax promptly and lastly, render assistance to appropriate and lawful agencies in the maintenance of law and order.

I have gone this far to give a fair exposition of the import of the fundamental objectives for us to appreciate the magnitude of the responsibilities foisted on the state and the citizens. From the enumerated obligations, it is clear that this is a case of a binding social contract between the State and the citizens and underscores the values underpinning the Constitution. These obligations are supposed to be leadership aspiration where there exists a credible system. The further challenge with this is the wrong assumption of the country being an egalitarian society. This remains a mirage. As robust and comprehensive as these obligations are, the efficacy of the provisions remains a challenge principally due to the negative effect of the provision of section 6 (6) c of the constitution. This Section provides that the judicial powers of the state ‘shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or 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’. In legal parlance, this is often referred to as non-justiciability of the constitutional provisions captured in the summary above. The simple implication of this in elementary terms is that a citizen cannot approach the court to compel or enforce any of the obligations.

The correctness or otherwise of this impression given to us since our constitutional law class as under-graduates, shall be interrogated later in this discourse. However, suffice to state that the latter provision is a contradiction of the obligations created under the Chapter II of the Constitution as to the fundamental objectives. Due to this aberration, a lot of citizens hardly bother themselves approaching the courts for the enforcement of the obligations. The situation is so bad that even lawyers substantially hold similar view as to its unenforceability. It is against this background and the seeming confusion looming around the subject, that the Nigerian Bar Association’s Section of Public Interest and Development Law (SPIDEL) set aside the 28th day of February, 2022 in a town hall meeting to interrogate the ‘justiciability of Chapter II of the 1999 Constitution: Pragmatic Measures for Government’s Accountability.’

(To be continued)