MEMORANDUM OF THE STATE OF OSUN ON THE REVIEW OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

Preface

This memorandum was initially presented by the State Government of Osun in response to the call by the law-making body for contribution to the amendment of the Nigerian Constitution.

The document emerged after contributions have been made by different stakeholders in the state, in an exercise coordinated by the constitution review committee set up for that purpose, under the leadership of Barrister Gbadegesin Adedeji, a former Attorney General of the state. The committee also had on board brilliant legal minds and foremost federal scholars.

When the previous Federal administration set up a Constitutional Conference in 2014, the State Government also presented this memorandum of the Conference and made copies available to the delegates to the conference. While the conference was ongoing, advertorials containing this memorandum were placed by the state government in two national dailies, The Nation and Daily Independence.

The memorandum is now being made public as our own contribution to the important national debate on the restructuring of Nigeria.

It is our belief at the State Government of Osun that the need and strident call for restructuring the Nigerian Federal system should not be reduced to mere political sloganeering but seen as a serious issue worthy of consideration by all patriots. It must therefore be rich, robust and backed with concrete and pragmatic proposals.

The recommendations in this memorandum are important practical suggestions aimed at giving life to the issue of restructuring, taking it beyond mere voluble political rhetoric and including forums and ways on its implementation.

It is our sincere hope that the public will find it useful as we engage in a serious national discourse for the evolution of a just, humane, federal and democratic African society that will serve the present and future generations.

Thank you.

Ogbeni Rauf Aregbesola

State Governor of Osun

 

1. PREAMBLE

1.1       The Senate Committee on the Review of the 1999 Constitution made a Public Announcement in the National Dailies, including the Punch Newspaper of Sunday, May 6^th 2012, that it has commenced the processes of further amendment to the Provisions of the 1999 Constitution and therefore called on the general Public, Civil Society Organisation, Professional bodies and other interested groups to submit memoranda on the following issues:

• Devolution of Powers;
• Creation of more States;
• Recognition of the Six Geo-Political Zones in the Constitution;
• Role for Traditional Rulers;
• Local Government;
• Taking out the following from the Constitution:
• Land Use Act;
• NYSC;
• Code of Conduct;
• Fiscal Federalism;
• Amendment of Provisions relating to Amendment of the Constitution, State Creation and Boundary Adjustment – to remove ambiguities;
• Immunity Clause;
• Nigeria Police;
• Judiciary;
• Executive;
• Rotation of Executive Office;
• Gender and Special Group;
• Mayoral Status for the Federal Capital Territory Administration;
• Residency and Indigene Provisions.

1.2       In response to this, the Governor of the State of Osun, Ogbeni Rauf Adesoji Aregbesola, directed that the State of Osun, being one of the Federating States in Nigeria, should contribute immensely to the debate by constituting the State Committee on the Review of the 1999 Constitution to aggregate the views of Osun citizens. The names of the Committee members are hereunder:

• Chief Barrister G.M. Adedeji Chairman
• Barrister Adewale Afolabi –Attorney-General  Member

and Commissioner for Justice represented by

Adulrasak Adeoye, SSA to Governor on Legal Matters.

• Ajibola Basiru Esq – Honourable Commissioner, Member

Regional Integration and Special Duties.

• Gbenga Awosode Esq Member
• Chief (Mrs) C.J . Aremu Member
• Chief (Barrister) Talib Bello Member
• Prince Akinloye Ajibola Oluseye             Member

Ola Oluwa LG     (Osun West Senatorial District)

• (Barrister) Ipoola Aderemi Binuyo Member

Ife North LG (Osun East Senatorial District)

• (Barrister) Adebayo Waseeu Gbola Member

Olorunda LG (Osun Central Senatorial District)

• Tayo Oyewale Esq Member
• Olayinka Okedara Esq Member
• Chief (Mrs.) Joke Olatunde             Member
• Sanusi Hadizat Nike Member
• Adesina K.O.             Secretary
• Demola Yaya Rappoteur

 

1.3       The Terms of Reference of the Committee are as follows:

• “To call for and receive Memoranda from the citizens of the State of Osun on the various areas of the Constitution as indicated above;

 

• To organize public hearings on the various aspects of the Constitution;

 

 

• To aggregate various views emanating from the Memoranda submitted as well as the public hearing on the subject matter;

 

• To submit the report emanating from the exercise to the Governor as the State of Osun Memoranda to be submitted to the Senate Committee on the review of 1999 Constitution;

 

• The Committee is given a maximum of (3) weeks from Thursday, 31^st May to Tuesday 19^th June, 2012 to conclude its assignment and submit to the Senate and House of Representatives Committees on the Review of the Constitution not later than Friday, 22^nd June, 2012 which is the expected deadline indicated in the publication.”

1.4       After its inauguration, the Committee conducted a 3-day public hearing having received numerous memoranda and materials with respect to reviewing of the 1999 Constitution (as amended).

1.5       This report, therefore, represents various memoranda, views, agitations, research and publication of various groups, community leaders, individuals, scholars, traditional rulers, Jurists, etcetera in the State of Osun.

2. DEVOLUTION OF POWER

2.1       The subject matter of Devolution of Powers in Section 4 of the 1999 Constitution (as amended), Second Schedule, Parts (i and ii) generated interesting proposals from prominent individuals and associations in the State of Osun.  Virtually all memoranda submitted are in agreement as regards reduction of powers allocated to the Federal Government in the 1999 Constitution (as amended).

 

 

2.2       Basic facts that can be deduced from these memoranda are summarized thus:

• Constitutional recognition should be given to geo-political zones/regions.
• That the geo-political zones or regions should be the Federating Units
• That the geo-political zones/regions should be created using such parameters as culture, land, nationality and political expediency
• More powers should be taken away from the centre to the Federating Units.
• That only matters bordering on the collective interest of the generality of Nigerians like Foreign Affairs, Defence, Currency, among others, should be left with the Central Government.
• Amendment of the Constitution should include a clause for self-determination.
• The National Assembly should be bi-camera but election to the House of Representatives should reflect extant Electoral Act incorporating Justice Uwais Panel reports in its entirety.
• Senators should be on part-time basis and receive sitting allowances only which should be determined by the Revenue Mobilisation and Fiscal Commission (RAMFAC) while the salary and emoluments of members of the House of Representatives should not be higher than that of the most senior public servant in the employment of the central government.
• That each Region, when constitutionally recognized, should be allowed to make and have its own Constitution.
• In view of the above, chapter 1 of the 1999 Constitution should be amended to make the Constitution supreme in areas allocated to the Central Government. However, if our proposal on devolution of power is accepted, then it will affect all other provisions of the 1999 Constitution which is essentially unitary in nature, orientation and philosophy to take care of heterogeneous nature of Nigerian society.
• In the event of any inconsistency or conflict between the laws of the Geo-political Zones or Regions and that of Central government, it should be resolved by the Central Supreme Court.
• The right of self determination should be guaranteed by the Constitution.
• In place of Section 3 of the 1999 Constitution of the Federal Republic of Nigeria which provides for the 36 States of the Federation, only the Geo-political Zone/ Regions should be listed which political Zones/ Regions have been informally recognized by the people of Nigeria. The only issue to resolve is power and responsibility to be allotted to each zone
• Section 4 of the Constitution should be preserved with a caveat that chapter V of the Constitution which contains Sections 47 to 89 should reflect the position of the people of the State of Osun that the geo-political zone/region should nominate Senators to Senate of the Central Government.

 

3. SYSTEM OF GOVERNMENT

3.1       A true Federal administration based on parliamentary system of government should be entrenched rather than the existing presidential system because parliamentary system allows for collaboration and will greatly assist in reducing the cost of governance.

3.2       Executive Powers at the federal level should be exercised by a Presidium of six elected Presidents from each of the six regions for a single term of six years with each president heading the government for one year on a rotational basis while each of them will have ministerial responsibilities on the federal matters for the term.  With this arrangement, no region will claim marginalization.

 

4. CREATION OF MORE STATES

4.1       Rather than creating more states, existing ones should be synergized into regions which will allow them tap each other’s resource and strength for faster growth. This position, we hold, in consonance of our agitation for Geo-political Zone and devolution of power. Nigeria’s development has been partly arrested by the huge resources in maintaining the existing state structure.

5. RECOGNITION OF SIX GEO-POLITICAL ZONES IN THE CONSTITUTION

5.1       Nigeria is at present a strange federal arrangement of 36 federating units that are largely unviable. Power is over concentrated in the centre and radiates from there to the States, at the pleasure of the Federal Government. Resources allocation formula tilts unjustifiably in favour of the centre, breeding wastes, corruption, ineptitude and under-development of the constituent States.

5.2       The cause of true federalism would be well and truly served if we return to the pre-1966 evolutionary path. That is, a balanced Federal structure which recognizes fully the legitimate claims of all these groups for self determination, and where no single entity among the federating units will be strong or powerful enough to hold the others to ransom, but where each of the federating units is large enough both in terms of size and population as well as of resources, to be viable, self-reliant and dynamic.

5.3       Arising from various different positions and strong argument canvassed for each position in the Memoranda to juxtapose this positions with other views in materials available, we recommend that the new amendment to the Constitution makes provisions to recognize the following Zones as Constituent Units of the Nigerian Federation.

5.3.1    NORTH WEST ZONE  –  (Sokoto, Zamfara, Katsina, Jigawa, Kano and Kaduna States)

5.3.2    NORTH CENTRAL ZONE – (Plateau, Nasarawa, Kwara, Kogi,                       Niger and Benue States)

5.3.3    NORTH EAST ZONE – (Yobe, Bornu, Adamawa, Gombe, Taraba and Bauchi States)

5.3.4    SOUTH WEST ZONE – (Oyo, Ogun. Ondo, Osun, Ekiti and Lagos States)

5.3.5    SOUTH EAST ZONE – (Imo, Enugu, Anambra, Abia and Ebonyi States)

5.3.6    SOUTH SOUTH ZONE – (Cross Rivers, Rivers, Akwa-Ibom, Edo, Delta and Bayelsa States)

5.4       We are of the strong conviction that the present 36 States cannot, properly speaking, be the constituent units of the Nigerian Union as they were not arrived at on the basis of any rational, cultural, linguistic, political or economic parameters but were largely products of whims, caprices and hegemonic designs of privileged past Heads of State or Presidents (as the case may be) who used their position to the advantage of their people.  We therefore hold the position and recommend the adoption of Regional or Zonal Structure. These regional or zonal structures should be accorded Constitutional recognition.  Each Region/Zone should have its own Constitution or be constitutionally empowered to enter into such agreements on administrative, economic and other activities, as may be approved by the Regional Legislatures.

6. ROLE OF TRADITIONAL RULERS

6.1       In view of the fact that traditional institutions must be respected as the custodian of custom and culture of the people and because of the historical and cultural values bestowed on the traditional institutions which must at all time be protected, the call for Constitutional role for traditional rulers is unnecessary and uncalled for.  This is because the jurisdiction of each traditional ruler is restricted to his Local Government Area or a part thereof.

6.2       However, Nigeria being a multi ethnic, multi cultural country which precludes it from having a unified traditional system, It is therefore, submitted that the Federal Constitution should NOT accord/include any role for the traditional Institution. At best, each Regional Assembly should, in pursuance of its residual power, make such laws as it may deem fit to accord honor and specific responsibility to its traditional institutions.

7. LOCAL GOVERNMENT

7.1       The creation, administration and control of local Government should be left to the States Houses of Assembly whether geo-political zone/region is recognized or not. Further, local governments should not be a basis for revenue sharing among the federating units.

8. TAKING OUT THE FOLLOWING FROM THE CONSTITUTION:

8.1       LAND USE ACT– The current Land Use Act which was enshrined in the constitution by its military authors should be repealed, while customary forms of land ownership shall be adopted by each Region/Zone.

8.2       NYSC– National Youth Service Scheme which was established in 1973 had made tremendous positive impact in Nigeria and on our youths in the area of National integration, cultural exposure, social and marriage interaction and of course employment opportunities. However, from memoranda submitted, the general view is that the scheme be retained but to be strongly re-structured so as to bring back the lost glory.   We equally adopt this position and recommend that the security of the Corps members be taken as a paramount consideration by the Government. The non-professional Corps members be allowed to learn a trade or skills during the service year to allow them to be independent and self employed after the programme. In addition, we recommend that the lives of Corps members be insured and be allowed to serve within their Geo-political Zone/Region.

8.3       CODE OF CONDUCT– Just like the Land Use Act and NYSC, the Code of Conduct Bureau established by Section 153 of 1999 Constitution with noble and lofty objectives of checking tendency of Public office holders who abuse their positions or offices. By the evidence and argument of different opinions in the memoranda, we recommend that Code of Conduct be retained in the Constitution.  We propose further that new amendment be made to stipulate what should be the Code of Conduct and retained penalties for non observance/compliance of same.

9. FISCAL FEDERALISM

9.1       Views on Fiscal Federation are based on Power Devolution agenda. The general opinion is that each geo-political zone should control its resources with certain percentage as may be determined by the Zone to Central Government.  That all manners of taxes, including VAT, shall be the exclusive preserve of the geo-political zone/region except those dealing directly with matters relating to Central Government.

10. AMENDMENT OF PROVISION RELATING TO AMENDMENT OF THE CONSTITUTION, STATE CREATION AND BOUNDARY ADJUSTMENT – TO REMOVE AMBIGUITIES.

10.1     Recognition of geo-political zone/region will ease ambiguity and difficulties associated with amendment of the constitution, state creation and boundary adjustment as each geo-political zone/region will have its own constitution, to determine the viability of the state and of course negotiate boundary issues with neighboring zone/ region or may be referred to the Central Supreme Court of Nigeria, as the case may be.

10.2     The process of amendment in Section 9 of the 1999 Constitution is cumbersome. We recommend that the National Assembly should have major power of amending the Constitution and leave the residual power to the State Assembly.

11. IMMUNITY CLAUSE – SECTION 308(1), (2) AND 3 (AS AMENDED)

11.1     The 1999 Constitution exempts certain categories of public officers from prosecution while in office.

11.2     PUBLIC OFFICER AFFECTED:- This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor and the reference in this Section to “period of office” is a reference to period of office the person holding such office is required to perform the functions of the office.

11.3     The view of the people is that Section 308 (1), (2) and (3) should be retained in its present form as contained in the 1999 Constitution (as amended).

11.4     REASON(S):- This section and sub sections have not conferred a wholesale immunity on the persons holding the office but only as at the period they are incumbent of the offices.  The provisions are only related to President, Vice President, Governor and Deputy Governor.  The provisions on immunity do not affect the other officers of the Government and also the Legislative arm of the Government.  The purpose of the provision is that removing the immunity clause could distract the President, Vice President State Governors and their Deputies as opposition parties or mischievous individuals could institute criminal charges against them thereby distracting the due functions of the President, Vice President, Governor or Deputy Governors.

11.5     IMPLEMENTATION:- The present provisions on immunity had been enforced on the holders at their exit from office – such cases included Joshua Dariye (Plateau) Depriye Alamesiagha (Bayelsa) James Ibori (Delta) and Lucky Igbinedion (Edo).

11.6     The opinion of our people is that this section be retained but will wish to comment on the implementation by investigation authorities on the due enforcement of the provisions –

• The investigations should not wait until the exit of the affected officials.
• The trial should not be allowed to be prolonged over so many years as in the recent cases.
• The plea bargain should follow the British type where the guilty shall not only be allowed to forfeit the ill-gotten wealth but should also be made to serve terms of imprisonment as provided under the law.

12. NIGERIA POLICE – Section 214 (10 and (2), Section 215 (1), (2), (3) and (4)

12.1     The issues agitating the minds of individual are whether the policing system in Nigeria should be under the control of the Central Government or Regional Government?

12.2     The agitation for a State Police is borne out of the present ineffectiveness of the Federal Police to provide Security and other malfeasance perpetrated by the Police in their discharge of their Constitutional duties.

12.3     HIND SIGHT:- The establishment or the provision of a Federal Police is borne out of the fact that in the previous years during the Nigeria Constitutional evolution, there then existed then:

(i)        Local Government Police in the Southern States and

(ii)       Native Authority Police in the North.

12.4     The atrocities perpetrated by these established State Police made the government of that time to disband the entire Local Government Police and the Native Authority Police, although, they were made to be trained by the Nigeria Police.

12.5     LEVEL PLAY GROUND:- There is no friction on the performance of the Police vis-à-vis the State where they do operate – However, by section 215 (4) of the 1999 Constitution where a Commissioner of Police will –

12.5.1  have the audacity to decline to enforce the instruction of the State Governor who is the Chief Security Officer of the State;

12.5.2  Invade the territory of a State Governor as an army of occupation contrary to the wishes of the State Governor;

12.5.3  Performing act and other authorized duties that are inconsistent to the directives of the State Governor and

12.5.4  Several infractions of the Law which are not in conformity with the wishes of the State – as was done in Lagos during the workers protest.

12.6     The opinion of the people of Osun is as follow:

12.6.1  The removal in its entirety the proviso relating to the provisions of section 215 (4) of the 1999 constitution.

12.6.2  That each Region be allowed to establish its own Police Force that will operate and be subject to the directives of the Regional Inspector General of Police in the Region who derives his powers from the Regional authorities.

13. JUDICIARY:- Section 6,(1) – (5) (a) – (k). Section 230, Section 237 – 284.

13.1     The 1999 Constitution (as amended) vested the judicial powers of the Federation in the Courts Section 6(1), the State Judicial Power (Section 6 (2)) and from Sections 237 – 284 enumerated the composition and the Jurisdiction of each of the Courts.

13.2     The Committee was inundated with memoranda on this particular matter.

13.3     It is recommended that the present arrangement on the court system is unitary and not conducive to genuine federalism.

13.4     It is recommended that each region should have its own appellate system up to the Regional Supreme Court but that appellate jurisdiction of the Federal Court of Appeal and the Federal Supreme Court should relate to matters in the Exclusive powers of the central government and constitutional matters including election petitions.

13.5     ELECTION PETITION TRIBUNALS:- It is observed that the time limitation for determination of election petition in Section 285 of the Constitution and the rigid literalist approach of the constitution has occasioned patent injustice in many cases and as such the provision must be urgently amended.

NATIONAL INDUSTRIAL COURT

13.6     The focus on the jurisdiction of the National Industrial Court has generated a heated and dangerous argument in our legal system owing to the expansive jurisdiction of the court in recently amended 1999 Constitution.

13.7     RECOMMENDATION: The Committee recommends the following:

13.7.1The jurisdiction of the National Industrial Court should be limited to cases arising from wages and lock-outs by Civil Servants, Public Servants but matters concerning political office holders should be handled by State High Court.

13.7.2National Industrial Court does not have sufficient logistics to cope with its present jurisdiction which has become too unwieldy.

13.7.3The National Industrial Court should concentrate on

(i)        Inter or Intra trade union disputes;

(ii)       Trade disputes in industries and companies simpliciter;

(iii)      disputes arising from wages between the Federal Government and its workers.

FEDERAL HIGH COURT

13.8     The Committee recommends the following:

13.8.1Section 251 (1) of the 1999 Constitution (as amended) which gives jurisdiction to the Federal High Court on matters in which the Federal Government or any of its agencies is involved should be abolished. This is because it confers undue advantage on the federal Government as a party.  Litigants should be free to initiate actions in any Federal or State High Court.

13.9     All disputes arising from land should be tried by State High Court.

Boundary Commission

13.10   The Committee further recommends that the National Boundary Commission should be abolished.

13.11Inter-State boundary disputes should be handled by the Supreme Court and all cases arising from inter Local Government and inter community land disputes should be handled by the State High Courts. This is because it has been evidently established from boundary disputes cases that those Commissions do not seem to possess courage and force of law to determine the disputes thereby make the disputes last too long while parties often resort to self help, kill and main.

14. EXECUTIVE:- Section 5 (1) and Section 130 of the 1999 Constitution:-

14.1     The Executive powers of the Federation section 5 (1) shall be vested in the Presidium as earlier indicated.

14.2     The committee is of the view that:

14.2.1  True Federalism is not being practiced by the Executive

14.2.2  The executive is over bloated by appointments provided for in the Constitution and myriads of appointment not provided for in the constitution.

14.2.3  The appointment of support staff for the Executive are too unwieldy with some overlapping responsibilities.

14.3     The committee therefore recommends as follows:

14.3.1  That the appointment of Ministers, Special Advisers and other appointments not provided in the Constitution be pruned down considerably.

14.3.2  The Exclusive Legislative List should relate to matters of National Interest and Concurrent List should be expanded to allow State Governments to have control over matters within their domain.

14.3.3  The Oransanye Committee Report should be implemented without any further delay.

14.3.4  The reports of all commissions of inquiry that were set up in the past and in the very immediate past by the government particularly as they concern those who have in one way or the other truncated the fortunes of this country and which have remained in the custody of the government.  The Committee recommends that a Constitutional provision be made for the implementation or issuance of White Paper on the reports for the purpose of putting into effect the report of such Commission of Enquiry.

15. GENDER AND SPECIAL GROUP

15.1     Already, government at all levels and individual organizations have been very passionate on the issue of gender and special people.  Ditto with the International donor agencies. Gender and special group should be constitutionally empowered such that the position will not be abused.   The law at present does not prevent any woman from contending with any man in all sphere of life be it education, politics, farming etc.  But the 30% arrangement for women can be prescribed for public offices.

16. MAYORAL STATUS FOR THE FEDERAL CAPITAL TERRITORY ADMINISTRATION

16.1     A cursory look at the positions in Memoranda gave us conviction that administration in the Federal Capital Territory should be through free and fair electoral process in addition to the current democratically managed six area councils. This is how it is done in America and other countries.

17. RESIDENCY AND INDIGENE PROVISION

17.1     Experience has shown that for Nigerians to have a sense of belonging and contribute positively to the development of where he/she lives or resides and avoid inferiority complex, the present position that gives equal rights to citizens to hold political position in any part of the country irrespective of where he/she hail from be maintained.  But this dos not mean that he or she shall be entitled to claim to be an indigene or native of that State or community.

18. THE MILITARY

18.1     There is need for a fundamental restructuring of the Military. There should be a regional based army but with a central control just like in India.

19. CONCLUSION

19.1     The review of the 1999 Constitution, no doubt, is of great interest to the good people of the State of Osun who have for many years been in the forefront in the struggles and agitations for a balanced federation, in place of a strange Federal structure where power is over centralized, leading to sundry deficiencies.  For unity in diversity, for all-round development, for equal opportunity for all, for a polity where no one is oppressed, and where there is iron-cast guarantee for the fundamental human rights of all citizens, a drastic review of the 1999 Constitution, is our peoples minimum demand or request.

19.2     Finally, we appreciate the National Assembly for throwing the issue of the constitutional amendment to the public for participation and we hope that a dispassionate consideration to the submissions by all concerned.