Constitutionalism in Africa

Constitutionalism in Africa: The Issues, Challenges and Opportunities.
Text of keynote lecture delivered at the conference on “Constitutionalism and State Reconstruction in West Africa” organized by the Committee for the Defence of Human Rights (CDHR) The ECOWAS Secretariat, Abuja ,Nigeria September 13, 2000.  The views expressed in this paper are those of the author.
It is indeed an honor to be asked to deliver this keynote lecture at this very important conference on constitution making and constitutionalism in West Africa.  Let me confess however, that this speech was put together only a couple of days ago when the honorable minister for justice of the Republic of Zimbabwe informed the CDHR that he could no longer be with us.  Allow me to congratulate the organizers, CDHR for bringing together some of the most dedicated and patriotic activists and academics on the continent to deliberate on best practices on constitutionalism, draw lessons from our painful experiences, and make progressive projections for the future.  I am certain that we are all committed to the task of promoting democracy, gender equality, human rights, social justice, and pluralism in all spheres of our respective organizations, communities, and countries.
Allow me to specially congratulate the Nigerian people for the return to democratic rule.  Nigerians must however never forget that though Ali Baba may be dead, the forty thieves are still very much alive, each one probably more dangerous than Ali Baba.  The task of containing the military, imposing discipline within the ranks of a largely irresponsible and corrupt elite, redefining the political landscape, promoting the rule of law, enhancing the effectiveness of institutions, acknowledging the place and role of women in society, and cultivating true democratic values has just begun.  Nigerians, irrespective of gender, class, ethnicity or whatever must never relax and assume that things are OK.
It was only recently that we all began to subject the so-called third wave to critical evaluation.  While we all rejoiced at the liberalization of political spaces in Africa, we failed to take critical note of some trends and tendencies that now appear to be compromising the democratic project.  In the temporary excitement over the new and loud political gyrations of the so-called new democrats, we confused appearances with substance.  Of course, the visible involvement of Western governments, international NGOs, and the lending agencies in defining, shaping, and even implementing the liberalization agenda facilitated the encapsulation of the process and its reduction to procedural gyrations that failed to alter the structural foundations of the African predicament.  Indeed, the role of the West, even where it was well intentioned, failed to fully appreciate the history and historical experiences of Africa; the undemocratic distortions and disarticulations that negate democracy; the manipulation of the process by entrenched interests; and the essence of democratization and democratic transformation, as against mere liberalization and elections.  Perhaps the greatest crime of the donors and lenders against Africa and its transition from authoritarianism is in reducing African civil society organizations into externally focused, opportunistic, corrupt, and visionless agents for pursuing the tentative, tenuous, and limited agenda of “change” that has been externally packaged.
The consequence of the above is that we are only just discovering that many of our human rights organizations, prodemocracy groups, new political parties and so on are not really democratic; that they lack the capacity to push for true democratization; that women are still invisible in their structures; and that they lack ideological clarity, courage, and vision.  We are just beginning to realize that many of the so-called civil society groups were never really interested in change for transformation or true reformation, but were interested in change for restoration of a repackaged status quo.  Thus as soon as they captured state power, like the nationalists of the 1950s and 1960s, they whitewashed the instruments and structures of domination, marginalization, exploitation, and repression and continued with business as usual.  Many of the prodemocracy movements are dominated by old and outdated ideas and incapable of providing a formidable challenge to the discredited old guard of African politics.  As well, they are concentrated in the capital cities, exhibit a pathological fixation on the capture of raw power, and are better known to donors and Western governments than to their own peoples.  They shamelessly ape the prescriptions of the IMF and World Bank and lack ideological originality while they are quick to abandon declared objectives for a share of power with the “devils” they had been fighting.  Finally, they are unable to reach accommodation with each other hence the proliferation of political parties, prodemocracy movements, and presidential candidates.
You will agree with me that a close look at most of the countries where “change” had occurred as part of the so-called Third Wave would reveal a continuing process of violence, corruption, human rights abuses, skewed allocation of resources, harassment of social activists and academics, and subservience to foreign determined and dictated ideas especially from the multilaterals.  Most painfully, we would see not just the continuing oppression and exploitation of children, women, and the poor, but also the shameless mortgaging of Africa’s future to imperialist agents and agencies in the name of “political reform,” structural adjustment, or globalization.  Some of our so-called “enlightened”, “younger”, “educated”, and “revolutionary” leaders speak, sound, and look more like confused political thugs, crooks, and political opportunists of the worst kind ever imaginable.  To some, this might be harsh.  But tell me: how do we explain the lack of vision and political courage?  How do we explain continuing disregard and disrespect for women?  How do we understand continuing subservience to foreign dictated economic and political programs?  How do we explain the inability to build new networks, encourage new discourses, and commit society to the construction of new political values?  How on earth can we understand this tenacity to office and the privatization of power?  How do we explain the resort to war and other forms of violence within and across borders over mundane issues including personal egos?  Finally, how can we explain continuing corruption, mismanagement, inefficiency, concentration of resources in a few locations, the manipulation of ethnicity, language and identity, and the pathological fixation on raw power?  We have seen enough of the politics of illusion and the arrogance of power.  We have seen the trivialization of the rights of people: they give it on one platform and abridge it on another.  We have seen the arrogance of power: power that should belong to the people but now appropriated and privatized by one “big man” and his ethnic jingoists or cabal of crooks!  Many of our “radical” and “modern” leaders appear to be irrevocably bound to violence: how do you explain the ease with which “friends” and “comrades” degenerate into war as has been the case between Uganda and Rwanda, and Ethiopia and Eritrea!  This sort of irresponsibility that is costing already poor countries a lot of foreign exchange and innocent lives can no longer be tolerated.  It can be asserted that it is only the continuing courage and determination of civil society groups and leaders, especially movements of students, women, environmentalists, professionals, and human rights that has prevented the so-called new leaders from going overboard.  In this new democracy business, it is like political abracadabra: the more you look the less you see.  You are told today that democracy is the answer.  The very next day, you are told that democracy is alien, it has to be controlled, and you have to wait for the “big man” to approve when you can practice democracy!  Our people are voting without choosing and the corrupted, contaminated, and compromised political show is throwing up several democratic dictators!  To buy legitimacy for the reform process, especially to satisfy the new masters, Africa’s new leaders have tried to use a new approach to constitution making to redesign, redefine, repackage, and reallocate power.  Fortunately, in a handful of countries, constitution making has been used to promote a national rebirth, national education, mobilization, and healing.  It has been used to redefine the content and context of politics and to drastically attempt to empower hitherto marginalized and brutalized constituencies such as women and minorities.  How and why have they done this?
The New Culture of Constitution Making
A critical by-product of the new processes and dynamics of power, politics and political contestations has been a renewed interest in constitutionalism and constitution making all over Africa.  Uganda, South Africa, Eritrea, Ethiopia, and Ghana have taken this process to the most admirable levels because of the PROCESSES they adopted.  Zimbabwe also adopted a process-led approach and after several months of near meaningless gyrations in the wilderness of political conservatism, Nigeria has also recently adopted a consultative though yet to be actualized approach to reviewing its undemocratic 1999 constitution.   This renewed interest in democratic and participatory constitution making is directly linked to a new doctrine of political legitimacy that is emerging in Africa’s civil society.  This new doctrine is built around continental and international interests in, and commitments to the challenge of helping plural communities articulate collective national visions for designing and promoting democracy and democratic values.  More importantly, participatory constitution making is being used to build OWNERSHIP and LEGITIMACY around the constitution as a strategy for building democratic vales and strengthening the national project.  Constitution making is also being used to mobilize the populace; resolve the legacies of dictatorship; and establish a new agenda for growth and development.  Constitution making is being used to articulate national dreams, educate the populace, draw attention to existing contradictions, and promote a new culture of tolerance, inclusion, participation, and democratization.  The new constitutions are now seen as road maps that define power and set out new or alternative political arrangements for addressing the national question.  The constitutions also spell out the socio-economic, cultural and political rights of all citizens; reassure disadvantaged constituencies like women and minorities, and provide a political road map for a new generation of Africans as we move into the next millennium.  Finally, constitution making is being used as a powerful tool for engaging the contentious issues of ethnicity, language, gender, accountability, social justice, difference, and identity.  Unlike the colonially inspired constitutions of the 1960s, the new constitutions are directly addressing these questions.
Making a truly popular constitution often precipitates several critical questions: Who should initiate the process of constitution making and on what terms?  What should be the minimum mechanisms and guiding principles for constitution making?  For how long should the process run?  Who selects the staff or leadership of the constitutional review commission? Should there be restrictions as to what the commission should cover?  What are the guarantees that what comes out of the process will be respected by those in power?  Is it possible to use the process to check the violent, irresponsible, and rapacious African military; corrupt and grossly inefficient public institutions; and the unstable, illegitimate, over-bloated, repressive, and non-hegemonic postcolonial state.  Constitution making at the end of the day is about state reconstruction, the promotion of social justice, the collective articulation of the rules of politics and power, and the empowerment and mobilization of all citizens for robust involvement in the political process.  It is relatively easy to manufacture a constitution.  It is however more challenging to make a constitution and build a viable culture of constitutionalism.  Most African states are riddled with the shameful legacies of constitutions without constitutionalism.
The Failed Postcolonial State and Constitution Making
Though constitution making is not new in African politics, it has remained more a strategy to strengthen the decadent power elite, pretenders to authority, and political crooks.  Even the criminal Apartheid state pretended to have a constitution.  Blood thirsty despots and world renowned looters of their respective national treasuries like General Sani Abacha of Nigeria, Idi Amin of Uganda, Jeane Bedel Bokassa of the Central African Empire (now Republic), and Marcias Nguema of Equatorial Guinea all had constitutions in one form or the other.  But as we all know, these so-called constitutions were not even worth the paper on which they were written.  In plain language they were useless documents.  They were not the basis of governance.  They did not guarantee any rights and were hardly referred to by any one.  More importantly, though some of them claimed to be legal documents, they were certainly not legitimate.   In fact, the so-called constitutions were instruments for terrorizing the poor and weak, legitimating corruption and the privatization of the state, and rationalizing the suffocation of civil society and subservient relationships with imperialism.
The same could be said of Nigeria’s 1999 constitution: it is legal but very illegitimate document.
Why were these constitutions illegitimate even if legal?  The truth is that they were not compacted through a truly open and democratic process that paid attention to the dreams, pains, and aspirations of African people, their communities, and constituencies.  In fact most of these were directly imposed constitutions or elite-driven processes that treated the people and their ideas with disrespect, if not contempt.  The hallmark of imposed constitutions is that they are never subjected to popular debates or referenda.  If at any point the constitutions were subjected to public debates, such debates were often brief, carefully monitored and manipulated.  The documents, either in draft or final forms, were never made available to the people.  If referenda were called, the results were rigged in favor of the state and its custodians.  In some cases, the reports of constitutional commissions were simply ignored after elaborate ceremonies aimed at diverting public attention and convincing donors and the international community that something positive was being done about democracy.  In Nigeria, not only were general and presidential elections conducted without a constitution, but also, the draft was never widely debated, seen or voted upon by the people.  Even after the presidential election, the government continued to keep the constitution a secret and away from the Nigerian people.  In an open demonstration of military arrogance and insensitivity to the popular will, the General Abdulsalami Abubakar junta refused to release the constitution even after the military ruling council spent three days “putting finishing touches” to what was supposed to be a peoples’ document.  The illegal junta then promulgated a decree to give legality to the document.  This is hardly the way to lay the foundation for a democratic project and the decree could not buy LEGITIMACY for the constitution.  Such arrogance of power and disrespect for the popular will simply widens the already wide gap between the state and civil society, and between the government and the governed.  It is not surprising therefore that constitutions in postcolonial Africa have never enjoyed widespread acceptability.  This lack of acceptability mediates their utility as veritable weapons to be deployed in the defense of the democratic project.
In the process of reviewing their constitutions, largely as a result of courageous and costly pressures from civil society working across ethnic, regional, religious, and other primordial lines, African leaders have adopted all sorts of tricks and underhand strategies to retain power or mediate the impact of popular demands.  These have included:
1)constitutional conferences with full sovereign powers as in Benin Republic;
2)Constitutional conferences that were packed with agents of the state as in Mobutu’s Zaire;
3)Constituent Assemblies packed with nominated representatives and persons elected under questionable or unaccepted conditions as in General Sani Abacha’s Nigeria;
4)Constitutional Review Commissions with terms of reference designed and determined by the state and aimed at reaching conclusions favorable to the state as in Nyerere’s Tanzania and General Abubakar’s Nigeria;
5)Constitutional commissions with clear efforts to tinker with the constitutions in a way designed to deal with specific problems and political “enemies” of the president as in Chiluba’s Zambia;
6)Constitutional amendments that seek to re-establish state legitimacy while actually  strengthening it vis-à-vis civil society as in the case of Algeria;
7)Tentative but carefully programmed and very slow concessions to constitutional reforms aimed at making no concrete changes in the constitutional compacts as in Moi’s Kenya; and
8)Constitutional processes designed to bring about a new constitutional contract between the state and the people based on past experiences and aimed at a new political environment to promote democracy and democratic values as in Eritrea, Ethiopia, Uganda, Ghana, and South Africa.
To be sure, even the last form of constitutional process is hardly perfect.  It contains several imperfections, contradictions, and several avoidance mechanisms.  These are provisions that attempt to dodge critical questions of political arrangements such as federalism or unitarism as in South Africa; fiscal federalism or fiscal unitarism as in Nigeria; multiparty or movement system as in Uganda; and dual citizenship or monocitizenship as in Ghana.  But whatever the situation, these new brand of constitutions and the process that culminated in the final enactment have had the courage to raise and address new issues that if sustained and built-upon, would significantly extend the frontiers of democracy and work to consolidate Africa’s democratic rebirth.
Nigeria at the Constitutional Crossroads
It is quite easy to make a really bad constitution.  All that the state and its custodians need to do is treat the exercise as a private or secret process, consult no one or allow only minimal consultation, and aim for legal recognition rather than building popular legitimacy around the constitution.  Once such a process is followed, it can be guaranteed that the content of the so-called constitution would be undemocratic and insensitive to the yearnings of the majority in society.  Where the state is dominated by the military or by a clique of opportunistic and corrupt political elite, the excessive concentration on regime survival and elite control of the larger society by any means available can almost guarantee an undemocratic constitution making process.  Unfortunately, this has been the experience of Nigeria.
It would be inaccurate to contend that there were signals that the 1999 constitution would in any way reflect the wishes and desires of the Nigerian people.  Under the military, the levels of violence, alienation, bitterness, distrust and cynicism in the country were just too deep and the government just too out of touch with realities in the country.  In the first place, Nigeria has never had a process-led constitution making approach.  Though committees and commissions have always been established, unpopular governments have always handpicked the committee members and their mandates defined in such a way that consultation, mobilization, education, dialogue and debates on a nation-wide process were never on the agenda.  Even in 1979 when a Constitution Drafting Committee (CDC) was set up by the military, a substantial number of the committee’s members were appointed by the government and there were frequent interventions in its functioning.  The CDC did not truly reflect the balance of forces as pro-status quo elements held sway throughout its duration.  No referendum was conducted and the military under General Obasanjo secretly amended the draft submitted to it and inserted some of its pet decrees into the final document.
Second, the military in Nigeria has always been uncertain about opening up the political process given the widespread belief that it might lose out in such a widespread national engagement of contentious issues.  There has always been the fear that such a national debate would turn against the military and that any referendum would turn out to be a judgement on military rule.  Again, this fear of opening up the process is also partly responsible for the tentative attitude of the current custodians of state power in the country.  Third, Nigerian leaders and politicians have never had a positive relationship with civil society and they have never expressed respect for non-bourgeois communities and forces.  Thus, the idea of giving the people an opportunity to discuss the constitution, articulate their own issues, and insist on these issues being included in the constitution has never occurred to Nigerian leaders.  Finally, unlike South Africa and Ethiopia, Nigerian leaders have traditionally believed that the contentious issues of gender, nationality, identity, the rule of law, citizenship, and language are better left alone rather than subjected to rigorous national debate.  There has never been an agenda for articulating these issues as part of constitutional compacts as a strategy for reassuring restless communities, minorities, women, and other vulnerable and marginalized groups.  Consequently, these issues continue to survive beyond all the constitutions that have been practically imposed on the Nigerian people by the various military juntas
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The so-called Constitution Debate Coordinating Committee (CDCC) was set up by General Abdulsalam Abubakar solely to organize nation-wide consultations on the unpopular 1995 constitution.  It had as its chair a very credible Justice of the Appeal Court in the person of Justice Niki Tobi.  But the same could hardly be said for all the members who were handpicked by the military junta.  In fact, the presence of General Sani Abacha’s legal adviser Auwal Yadudu on the committee served to erode its credibility in the eyes of Nigerians.  It had barely two months to do its work in a nation of about 120 million people, 774 local governments, 36 states and the Federal Capital Territory (FCT).   As well, the Committee went about its work in a typically aloof manner.  True, it divided the country into nine zones, called for memoranda, organized some debates, had special hearings and traveled to selected sites to listen to views from a wide array of groups.  The Nigerian Embassy in the United States and a private group, Image Dynamics Communications and the Nigerian Consulate in New York also organized a conference on the 1995 constitution.  Though the prodemocracy movements had nothing to do with the meeting, it was attended by some fringe organizations such as the Eyimba North America.  It is instructive that leading members of the Nigerian opposition, prominent legal scholars and political scientists resident abroad and known to be critical of the military were not invited to the meeting.
Within Nigeria, the approach of the Debate Committee hardly reflected any awareness of strategies of process-led constitution making that had been successfully employed in Eritrea, Ethiopia, South Africa, Uganda, and neighboring Ghana.  Meetings were held in the daytime when workers were away to the respective places of work.  Popular groups were not involved in the debate and the constitution that was being debated was hardly available for all Nigerians to study.  Though the Committee spent time listening to various sectors of society, if the 1999 constitution was largely reflective of its original report to the government, then the exercise was clearly a joke when we consider the degree of contradictions, negative coalitions, conflicts, violence, and tensions over issues of nationality, identity, gender, ethnicity, region, religion, political restructuring, revenue allocation, minorities, and the military that the promulgated version simply ignored.   The Committee never tried, and was not encouraged to directly engage the well-organized opposition such as the National Democratic Coalition (NADECO), the United Action for Democracy (UAD), the Joint Action Committee of Nigeria (JACON), the Campaign for Democracy (CD), and other organized constituencies such as students, labor, the human rights community, and women.  In short, the distorted and compromised process that culminated in the constitution ignored both the structural issues that have bedeviled the country’s ability to enthrone a truly accountable, transparent, and democratic political order.
It was not surprising therefore that the 1999 constitution failed to address in its entirety the character of the state; the nature of the custodians of state power; the critical issue of hegemony and the inability of the elite to initiate a national project; the national question; production and exchange relations; and other primordially determined or constructed identity questions.  The Nigerian experience completely ignored the emerging trend of constitutionalism that now informs the content and context of politics and political discourse in most of Africa.  The draft was never published or discussed by the public and there appeared to have been a deliberate strategy by the military junta to treat the report as a secret or personal document belonging to the military elite.  In short, the Committee and the government did not try to encourage a process that would build popular ownership around the constitution as a direct strategy of enhancing democratic consolidation and the rule of law.  In essence the process that culminated in the 1999 constitution represented a deliberate perpetration of “Political 419” on the Nigerian people and a betrayal of their yearnings for a transparent, accountable, just, and democratic political culture.
The 1999 Constitution
As soon as the 1999 constitution was promulgated through Decree No. 24, it attracted virulent attacks from all sectors of society.  As we have all seen, it has been very difficult to use this document as the tool of effective democratic governance because it contains so many parallel clauses that fail to clearly define spheres of authority.  While it is seen as a legal document, its legitimacy has been questioned.  It is not seen as a document arising from the collective consent of the people.  The Nigerian process was not sufficiently democratized to ensure full consultation and popular participation.  The Nigerian process did not directly address the nationality or ethnic question and has actually deepened primordial contradictions thus posing more challenges to the country’s new democracy.  The Nigeria process did not take full cognizance of the terrible legacies of military dictatorship that has suffocated civil societies, abridged democratic rights, curtailed creativity, and negated democratic traditions.  The manufacturers of the 1999 constitution did not appreciate the importance of using the process to build new bridges, open new lines of dialogue, and bring the various interest groups into the political process.  The Nigerian process was actually a brief discussion among a section of the (mis)educated and urban-based elite with little or no involvement of the majority of the people.  Consequently, it failed to build the very much-needed bridges between and within communities and groups across the country.  Finally, while post-civil war Ethiopian government used the democratized process of constitution making to resolve the fears of ethnic groups, contain some on the activities of ethnic entrepreneurs, and set out clearly a popular position on issues of nationality, language, citizenship, and the right to self-determination, the Nigerian “process” paid no attention to the bold and unique efforts to use constitution making to address the ethnic question.  In Nigeria, the military and its civilian allies, in an effort to protect the power status quo, tinkered with the constitution and missed an opportunity to use the process to address some of the burning questions that now appear to pose severe challenges to the democratic process.
Some of the contentious issues raised about the constitution include:
1.The preamble that is seen as telling a lie about itself when it claims that the document was put together by the Nigerian people;
2.Political structure- that it is federal in name only but very unitary in content
3.Secularity-that it does not fully establish without contradictions the secularity of the Nigerian state;
4.The judiciary- that the control of the federal government over judicial institutions and appointments in the states is rather heavy;
5.Revenue allocation- that the principle of derivation is not adequately addressed;
6.Women- that not only does it lack a gender commission but there are no affirmative action clauses to address historical discrimination and injustices against women;
7.Human rights- that the Human Rights Commission should not have been left out of the constitution and that it is weak on socio-economic and cultural rights;
8.Language- that sections of the constitution tend to uphold the language rights of the majority groups without granting equality to other languages;
9.The military- that given Nigeria’s bitter experiences with the military, the constitution should have drawn lessons from South Africa, Ghana, and Uganda on how to contain and control the military;
10.State-Federal relations- that the exclusive legislative list of the Federal Government is rather too long especially when those areas on the concurrent legislative list in which the federal government has superior authority are included;
11.Citizenship: that there is still no clear definition of social citizenship that guarantees full rights to Nigerians in any part of the country;
12.Constitutionalism: That there are no institutions built into the constitution to make it a living document and accessible to the Nigerian people;
13.Police Force: that in a true federal system, the federal government cannot monopolize the establishment and control of the police force;
14.Political parties: that it is a negation of federalism and individual rights to preserve for the federal government control over the formation and registration of parties; that the requirements as set out in the constitution assume too much as to why parties are formed and negates the right to form small parties exclusively for local politics;
15.Amending the constitution: that the current process is purely designed to frustrate amendments because it is cumbersome, expensive, and unrealistic and could only be seen as a strategy to maintain an undemocratic status quo;
16.Land Use Decree: that it is undemocratic in a federal system to vest all land in the federal government;
These are just some of the numerous criticisms against the 1999 constitution.  Unfortunately, the majority of Nigerians have not read the 1999 constitution.  As well, there is no national discussion going on in an organized or structured manner designed to build a new consensus on the constitution.
Chief Obasanjo and the Politics of Constitutional Review
The Obasanjo government in response to the widespread condemnation of the 1999 constitution and the numerous contradictions that it has generated has also committed itself to a review of the constitution.  Consequently, in 1999, President Olusegun Obasanjo called on the three political parties represented in the national assembly to nominate representatives to constitute an “All-Party Committee on the Review of the 1999 Constitution.”    The Committee has been meeting and has conducted some visits across the country.  It has called for memoranda as well and received some response.  Its main impediment has been that of finance: it is strange that the government could not provide sufficient support to enable the committee do a good job.  In view of the recent experiences of other African states, it has become obvious that the work of the committee needs to be deepened and expanded and more time given to enable it hold full consultations with the Nigerian people.  Also, the committee has not been able to draw on the benefits of comparative constitution making in the interest of producing a truly democratic and legitimate constitution.  More importantly, given recent calls for a Sovereign National Conference, Confederation, and other indicators of disaffection in parts of the country, the committee s et to adopt a truly consultative constitution making approach that would effectively respond to these agitations.  While the agitations are seen as indicators of a willingness to restructure the country to return to a truly federal arrangement, a participatory constitution making process is the only viable non-violent and non-combative way to restructure through dialogue, debate, and negotiation.  The larger questions about the constitution committee are: do the three parties represent ALL Nigerians?  In addition, who elected the members of the committee?  Does the fact that they are leaders of their respective parties give them the automatic mandate to review our constitution?  What about parties that were not registered but with elected members at the local levels?  What is the constitutional mandate of the committee?  Are there negotiations going on between the committee and other initiatives in the national assembly?  Is the committee sufficiently committed to issues of consultation, process, accountability, mobilization, and legitimacy as well as ownership?  Does the committee truly believe in the supremacy of the popular will?  What is the ideological or philosophical foundation of the committee’s strategy and work?  Has it a direct line of dialogue with popular communities especially nationality groups, women, minorities, and the youth?  Does the committee truly believe in using constitution making to address the national question and truly restructure Nigeria?  Is the committee accountable to the president, the political parties or to the Nigerian people?  Finally, does the committee truly see its task as an opportunity to promote a national dialogue, national education, and a collective resolution of those contradictions that appear to be mediating the consolidation of democracy?
The Presidential Committee has now adopted a strategy that would involve consultations with the people.  As they say, the taste of the pepper soup is in the eating.  Until the committee begins its work we cannot and should not condemn it though we must keep our gunpowder dry for any undemocratic developments.  Among other issues the committee must:
1). Expand its mandate beyond what its so-called terms of reference provide for.  This way, it would go beyond making mere recommendations to the president but would use the opportunity to organize, mobilize, educate and sensitize Nigerians to the worth of constitutionalism.
2). Link up with other initiatives in the National Assembly.  If it fails to do this, the Assembly could be guaranteed to dump its report in the trashcan since it is the Assembly that is really mandated by the constitution to amend or rework the constitution.
3). Stakeholders: The committee must hold meaningful consultations with major stakeholders in Nigeria: Nationality groups, women, the youth, media practitioners, traditional rulers, religious leaders, military and security forces, the private sector, Non-Governmental Organizations, and constitutional experts.
4). Publicity: The committee must make creative use of the media.  It must establish a website, a working e-mail service, a publications unit, a media room, and a desktop publication facility.  It must utilize inserts in newspapers, billboards, radio and TV jingles and discussions, produce and translate leaflets, acquire the constitutions of other countries, and produce copies of the constitution being reviewed for distribution to promote civic education.
5). International Consultations: An International Consultative Group (ICG) should be constituted made up of experts from all over the world to help with the review process.  The committee must also seek the assistance of relevant international centers and commissions that work directly on Constitutionalism especially within the Commonwealth to help.
6). Training Workshop: While members of the Committee are experienced politicians and professionals, a training workshop on how to make a participatory or people-driven constitution must be called to expose the members to other experiences, challenges, opportunities, and strategies.
7). Deadlock Mechanism: Given the nature of contemporary political contestations, deadlocks on critical issues must be anticipated on such issues s control of security forces, state-federal relations, revenue allocation, registration of parties, religion etc.  A high-powered Deadlock-Breaking Committee made up of credible Nigerians must be set up to assist with such problems.
8). Draft Report: Irrespective of what it is called, the Committee must produce at least 5 million copies of the draft report/constitution for wider circulation and comments before a final draft is produced for the consideration of the president, national assembly, and the Nigerian people.
9). Reintroduction of the Assignment: The president must make a nationwide broadcast reintroducing the constitutional review process.  The speech should acknowledge the limitations of the earlier approach and to articulate the new consultative strategy lasting 12 months.  The speech should posit the review and consultative process as a clear strategy for addressing the national question among other possibilities.
10). Establishing a Consultative Group: Clearly the committee still has a legitimacy crisis since it cannot claim to fully represent the generality of the Nigerian people.  To make up for this deficit, it must consider establishing a consultative group made up of non-governmental organizations.
11). Nigerians in the Diaspora: As is well known, Nigerians abroad contributed significantly to the fight for the redemocratization of Nigeria.  Traditionally, they have never been consulted on issues at home.  Yet, they are beginning to take a direct interest in local politics.  Many came home to run for office or to support candidates in the last elections.  It would be important for the committee to set up a few “offices” for the collection of memoranda from those abroad and to disseminate information on its activities.  The facilities of Nigerian Missions abroad must be fully utilized for the collection of memoranda.  A couple of Nigerians abroad should be invited to serve with the consultative group.
12). Representation of women: The Presidential Committee has only three women.  This is unfair in a country where a little over 50 percent of the population is female.  This is why the committee must pay special attention to the number of women appointed to the CCG. It is critical that gender sensitivity is reflected in the entire process.  Ultimately, it would be a sign and measure of the quality of Nigeria’s new democratic enterprise and evidence of our sensitivity to the realities of the 21st Century.
13). Approval/Legitimation Process: The issue of how the final constitution would be approved has to be addressed up-front.  The Committee sends recommendations to the President.  The President sends it to the National Assembly.  Would the Assembly constitute itself into a Constituent Assembly?  Would there be a referendum after that?  When would this be?  If there is a referendum, it could give the people the final say and the process of constitution making the final stamp. On the other hand, if the process were not adequately executed, then it would provide an opportunity to reject the document.   It is important to state or outline this phase early in the process.
14). Establishing a Presence Around the country: It is essential, in fact, mandatory that the committee is present in all states and LGAs and Wards throughout the country.  This would mean establishing a desk at all local government offices.  This helps to mobilize the grassroots and to involve them in the process.
If the committee takes these essential steps, Nigeria might actually join the ranks of the handful of countries that have taken constitution making seriously.  Nigeria would have provided an opportunity for all interest groups to be part of the process and would have built ownership and legitimacy around the constitution.  If Nigeria avoids or mismanages this process, it would have deliberately precipitated the foundations for instability, alienation, negative coalitions, and perpetual crises.  The Nigerian people must hold members of the committee and the executive directly responsible for failing to act when they should have done so.
Thank you.