Can There Be A Case For State Constitutions In Nigeria?

Being a Paper Presented by Gloria Mabeiam Ballason
Esq at The Future of Democracy in Nigeria Conference Held
at International Conference Centre, University of Ibadan, Ibadan
Oyo State Nigeria. Tuesday 8th – Wednesday 9th June, 2021.

PROTOCOLS

Thank you for the privilege of joining in this survivalist
discourse at a moment when our dear country is at a crossroad
transfixed and wondering how to go.

I believe it is in that sense that several options on what
pathway to take to Nigeria’s democracy future are now up on the
table. Many have suggested a return to the federalist model in
which we can have a style of government that devolves central power
into the regions for parity and complementarity of sovereignty. The
proponents of this school of thought argue that the agitations for
power sharing by the South-West, non-integration by the South-East,
economic and political marginalization by the South -South and
MiddleBelt will counterbalance the alienation of the majority
representation and winner-takes-all regime of the quota system.

This conference asks the question whether a case can be made for
State Constitutions in which case governmental structures and
political processes are divested in state domains but which should
be in conformity with the federal structure of the states and the
national government under the supremacy of the Nigerian
Constitution. In this prototype, each state will have its own
Constitution and so in the case of Nigeria, we should be looking at
36 or 37 State Constitutions including the F.C.T. and one national
constitution.

HOW SOME COUNTRIES WITH STATE CONSTITUTIONS HAVE
FARED.

On 17 November,1956, a constitution was adopted for the
establishment of a framework for the State Government of the India
state of Jammu and Kashmir. This state constituted the southern and
south-eastern portion of the larger Kashmir region that had and
still is the subject of a dispute between India, Pakistan and China
since the mid -20th Century . The Constitution came into effect on
26 January 1956 and granted special status to Jammu and Kashmir
among Indian states. It was the only state in India to have a
separate constitution. Article 370 which was drafted in Part XXI of
the Indian Constitution provides that the Constituent Assembly of
Jammu and Kashmir would be empowered to recommend the extent to
which the Indian Constitution would apply to the State and that the
State Assembly could also abrogate the Article 370 altogether, in
which case all of Indian Constitution would have applied to the
State. Jammu and Kashmir then became an autonomous state with a
Head of State (Sadr-i-Riyasat) separate and distinct from the 29
states governed by Governors and the Prime Minister who is the Head
of Government.

In 2019, a resolution passed by two-thirds of the two houses of
India’s parliament, led to the issuance of a Presidential Order of
5 August,2019 which rescinded and rendered infructuous the autonomy
previously granted and made all the provisions of the Indian
Constitution applicable to Jammu and Kashmir. A further Order of 6
August,2019 rendered inoperative all clauses in Article 370 save
Clause 1. Not done, the Jammu and Kashmir Reorganization Act,2019
divided the state into two union territories – the Union Territory
of Jammu and Kashmir and Union Territory of Ladakh .

As it stands, there has been no peace since the abrogation of
autonomy and India’s denial of right to self determination as well
as its continuous occupation of the Jammu Kashmir territory through
employing what many analysts describe as fascist tactics, is deemed
a violation of Resolutions 47 and 91 of the UN Security Council.
The matter has remained one of the longest standing issues before
the United Nations till date.

There is also the Australian model that evolved from six
colonies into a Federation. Sections 106 and 107 of the Australian
Constitution guarantees the continuing existence of the states and
preserves each of their constitutions. The States are however bound
by the Australian Constitution and their constitutions are in
general, regular pieces of legislation that are subject to
amendment or repeal by the State Parliaments in the same way as
other legislations. The state constitutions are the source of state
parliament’s power and cover the structure and process of the
legislature, executive and the judiciary. The Territories on the
other hand have no constitution. The Northern Territory and
Australian Capital Territory (ACT) were granted self-government by
the Common Wealth in 1978 and 1988 respectively with the passage of
Commonwealth legislation . These self -government laws are the
source of the parliament’s law-making power and are structured
similarly to the State and Commonwealth Constitutions. Territories
are also enabled to make laws on any matter but where those matters
are in conflict with Section 51 of the Commonwealth Law, they are
to the extent of the inconsistency, null and void.

As intricate as the Australian model seems, there have been
occasions where the Australian Supreme Court have had to judicially
delineate powers by upholding the right of parliament to hold the
executive to account and declaring that as an art of ‘responsible
governance’ . At other times the apex court of Australia upheld the
validity of legislation providing for the waiver of privilege by
the parliament. At yet another time, the Chapter III rights in the
Commonwealth Constitution and the scope of state courts vested with
federal jurisdiction had to be defined and the power of State
parliament was restricted when it was overreaching the State
Courts.

Not even the interactive constitutions of the 50 states of
America and the 234-year old national constitution for which
Americans laboured at the Philadelphia Convention from 25 May 1787
to 17 September 1787 when it was signed (an onerous four months!)
has insulated America, the capital of democracy from woes. For
although the reverberating and hope warming preamble reads : ” We
the People of the United States,in order to form a more perfect
union , establish justice, ensure domestic tranquility, provide for
the common defence, promote the general welfare ,and secure the
blessings of liberty to ourselves and our posterity, do ordain and
establish this Constitution for the United States of America…” ;
America the land of the free and home of the brave, experienced the
kind of power struggle common to third world countries and fought
hard until it prevailed.

DRAWING THE PARALLELS.

You can almost draw a straight line from Jammu Kashmir to
Nigeria’s East or West or Middle Belt. Agitations for redress of
injustice are loud and clear across the states and regions of
Nigeria with calls for autonomous state and resource control from
the Niger Delta, cessation by Biafran agitators, power sharing by
the West, devolution of power by the middle belt and all. These
hues and cries are circumscribed by the echoing call for
restructuring. The people are saying Nigeria as is presently
constituted is not delivering value to Nigerians and the north
appears to benefit from quota system and majority rule at the
detriment of others. The north which appears to be the biggest
beneficiary is also asphyxiated by insecurity and is also wailing.
Should we, in the circumstances, opt for the States Constitution? I
vote in the negative for the following reasons: In many states
local governments have become the mini Boys Quarters of State
Governors who put in tenants at will or make them sole
administrators -squatter volunteers. When there is a show of
semblance of elections, the ruling party in these selections muzzle
out or annihilate opposition. Even State House of Assemblies have
almost become unitary houses. Show me a state where opposition and
dissent are absent and I will show you a state where the ruling
party in conjunction with state governors ensure only yes men and
women of same party hold sway. Take a look also at the appointment
of heads of courts in states, the refusal of Governor Inuwa Yahaya
to confirm Justice Beatrice Iliya as substantive Chief Judge or the
Kebbi case of Justice Asabe Karatu who was shut off from delivering
her judgement under Governor Atiku Bagudu’s watch or even the Cross
River situation in which it had to take concerted efforts by the
Nigeria Bar Association before Governor Ben Ayade swore in Justice
Akon Ikpeme as substantive Chief Judge highlights the chilling
effect of what could happen when boundless power is on rampage. If
those examples do not drive home the point, a poignant example that
takes the day is Governor Nasir Elrufai’s monarchical Kaduna State
where the Governor decides whose house to knock down, which
traditional institutions to abrogate, who should be behind bars and
how many civil servants should be at work.

I make the point to say that if we opt for states constitution
against the track record of how many state governors have fared,
the managerial ethos of constitutional reform will be in opposition
with the democratic imperative of checks and balances. The
Constitutional structural theory rests on the twin principles of
separation of powers and of checks and balances. The first
principle requires branches of government to be identifiably
discrete. The second assumes that the branches are separate and so
concentrates on promoting the checking of each by the others.

As Michael Parenti said in his _The Assassination of Julius
Caesar , diluting democratic power with a preponderantly
undemocratic mix does not create an admirable balance and
stability. In actual practice the diversity of form becomes a
subterfuge that allows an appearance of popular participation in
order to lend legitimacy to oligarchic dorminance.

WAY FORWARD

But what is the argument on the other side except that national
cohesion is sagging, national structures are failing, the
leadership is dangerously on its own frolic and the people are left
wondering, will the prediction of the 100-year doom of Nigeria
become a self-fulfilling prophecy? The journey to statehood
requires more than compliance to the 1933 Montevideo convention of
permanent population,defined territory, government or capacity to
conduct international relations. Although our scorecard is poor on
all those counts, it is failing more epically at humanizing
governance with empathy, competence, accountability and diversity
management. Section 14 (2) b states that the security and welfare
of the people shall be the primary purpose of government. Section
17 (1) of the 1999 Constitution demands that the state social order
be founded on the ideals of freedom, equality and justice. Section
17 (2) (C ) makes it imperative with for governmental actions to be
humane. But because there has been a condoned norm of obeying the
Constitution in breach rather than in compliance, a flip argument
to the implementation of chapter two of the constitution where
sections 14 and 17 are found is that the provisions are non-
justiciable. These non-justiciability arguments have in practice,
now moved into and corrupted Chapter IV of the constitution. Today
the one who is deemed to have rights is the one with might and the
rest of us have been left at their mercy. Even the right to express
pain is shut down digitally and analogously – (no thanks to the
twitter ban).

Nigerian leaders must normalize dissent, diverse perspectives
and accountability to the rule of law. And so as we converse on
this hallowed ground which came into existence as a citadel of
learning 73 years ago and more than a decade before our country’s
independence, we must draw inspiration from how a College of the
University of London located in Nigeria’s West, evolved into
independence, made Sir Abubakar Tafawa Balewa from the north its
first Chancellor, Prof. Onwuka Dike from the East its first Vice
Chancellor and has retained that diversity while keeping a steady
lead as one of the most prestigious universities in the world. We
must also take heed to the courage of our host, His Excellency
Engineer Seyi Makinde, FNSE who at a time the centre is coming
unhinged, has gathered us in this ancient city to think through and
hazard a future for our country’s democracy. Your Excellencies,
distinguished guests, there are many broken places in our country
but it has fallen to us to rise and fight strong for a just and
united Nigeria. We cannot afford to sublet that duty so let us take
the gauntlet and make hay while the sun still shines. I thank you
all for listening.

Being a Paper Presented by Gloria Mabeiam Ballason
Esq at The Future of Democracy in Nigeria Conference Held
at International Conference Centre, University of Ibadan, Ibadan
Oyo State Nigeria. Tuesday 8th – Wednesday 9th June, 2021.

PROTOCOLS

Thank you for the privilege of joining in this survivalist
discourse at a moment when our dear country is at a crossroad
transfixed and wondering how to go.

I believe it is in that sense that several options on what
pathway to take to Nigeria’s democracy future are now up on the
table. Many have suggested a return to the federalist model in
which we can have a style of government that devolves central power
into the regions for parity and complementarity of sovereignty. The
proponents of this school of thought argue that the agitations for
power sharing by the South-West, non-integration by the South-East,
economic and political marginalization by the South -South and
MiddleBelt will counterbalance the alienation of the majority
representation and winner-takes-all regime of the quota system.

This conference asks the question whether a case can be made for
State Constitutions in which case governmental structures and
political processes are divested in state domains but which should
be in conformity with the federal structure of the states and the
national government under the supremacy of the Nigerian
Constitution. In this prototype, each state will have its own
Constitution and so in the case of Nigeria, we should be looking at
36 or 37 State Constitutions including the F.C.T. and one national
constitution.

HOW SOME COUNTRIES WITH STATE CONSTITUTIONS HAVE
FARED.

On 17 November,1956, a constitution was adopted for the
establishment of a framework for the State Government of the India
state of Jammu and Kashmir. This state constituted the southern and
south-eastern portion of the larger Kashmir region that had and
still is the subject of a dispute between India, Pakistan and China
since the mid -20th Century . The Constitution came into effect on
26 January 1956 and granted special status to Jammu and Kashmir
among Indian states. It was the only state in India to have a
separate constitution. Article 370 which was drafted in Part XXI of
the Indian Constitution provides that the Constituent Assembly of
Jammu and Kashmir would be empowered to recommend the extent to
which the Indian Constitution would apply to the State and that the
State Assembly could also abrogate the Article 370 altogether, in
which case all of Indian Constitution would have applied to the
State. Jammu and Kashmir then became an autonomous state with a
Head of State (Sadr-i-Riyasat) separate and distinct from the 29
states governed by Governors and the Prime Minister who is the Head
of Government.

In 2019, a resolution passed by two-thirds of the two houses of
India’s parliament, led to the issuance of a Presidential Order of
5 August,2019 which rescinded and rendered infructuous the autonomy
previously granted and made all the provisions of the Indian
Constitution applicable to Jammu and Kashmir. A further Order of 6
August,2019 rendered inoperative all clauses in Article 370 save
Clause 1. Not done, the Jammu and Kashmir Reorganization Act,2019
divided the state into two union territories – the Union Territory
of Jammu and Kashmir and Union Territory of Ladakh .

As it stands, there has been no peace since the abrogation of
autonomy and India’s denial of right to self determination as well
as its continuous occupation of the Jammu Kashmir territory through
employing what many analysts describe as fascist tactics, is deemed
a violation of Resolutions 47 and 91 of the UN Security Council.
The matter has remained one of the longest standing issues before
the United Nations till date.

There is also the Australian model that evolved from six
colonies into a Federation. Sections 106 and 107 of the Australian
Constitution guarantees the continuing existence of the states and
preserves each of their constitutions. The States are however bound
by the Australian Constitution and their constitutions are in
general, regular pieces of legislation that are subject to
amendment or repeal by the State Parliaments in the same way as
other legislations. The state constitutions are the source of state
parliament’s power and cover the structure and process of the
legislature, executive and the judiciary. The Territories on the
other hand have no constitution. The Northern Territory and
Australian Capital Territory (ACT) were granted self-government by
the Common Wealth in 1978 and 1988 respectively with the passage of
Commonwealth legislation . These self -government laws are the
source of the parliament’s law-making power and are structured
similarly to the State and Commonwealth Constitutions. Territories
are also enabled to make laws on any matter but where those matters
are in conflict with Section 51 of the Commonwealth Law, they are
to the extent of the inconsistency, null and void.

As intricate as the Australian model seems, there have been
occasions where the Australian Supreme Court have had to judicially
delineate powers by upholding the right of parliament to hold the
executive to account and declaring that as an art of ‘responsible
governance’ . At other times the apex court of Australia upheld the
validity of legislation providing for the waiver of privilege by
the parliament. At yet another time, the Chapter III rights in the
Commonwealth Constitution and the scope of state courts vested with
federal jurisdiction had to be defined and the power of State
parliament was restricted when it was overreaching the State
Courts.

Not even the interactive constitutions of the 50 states of
America and the 234-year old national constitution for which
Americans laboured at the Philadelphia Convention from 25 May 1787
to 17 September 1787 when it was signed (an onerous four months!)
has insulated America, the capital of democracy from woes. For
although the reverberating and hope warming preamble reads : ” We
the People of the United States,in order to form a more perfect
union , establish justice, ensure domestic tranquility, provide for
the common defence, promote the general welfare ,and secure the
blessings of liberty to ourselves and our posterity, do ordain and
establish this Constitution for the United States of America…” ;
America the land of the free and home of the brave, experienced the
kind of power struggle common to third world countries and fought
hard until it prevailed.

DRAWING THE PARALLELS.

You can almost draw a straight line from Jammu Kashmir to
Nigeria’s East or West or Middle Belt. Agitations for redress of
injustice are loud and clear across the states and regions of
Nigeria with calls for autonomous state and resource control from
the Niger Delta, cessation by Biafran agitators, power sharing by
the West, devolution of power by the middle belt and all. These
hues and cries are circumscribed by the echoing call for
restructuring. The people are saying Nigeria as is presently
constituted is not delivering value to Nigerians and the north
appears to benefit from quota system and majority rule at the
detriment of others. The north which appears to be the biggest
beneficiary is also asphyxiated by insecurity and is also wailing.
Should we, in the circumstances, opt for the States Constitution? I
vote in the negative for the following reasons: In many states
local governments have become the mini Boys Quarters of State
Governors who put in tenants at will or make them sole
administrators -squatter volunteers. When there is a show of
semblance of elections, the ruling party in these selections muzzle
out or annihilate opposition. Even State House of Assemblies have
almost become unitary houses. Show me a state where opposition and
dissent are absent and I will show you a state where the ruling
party in conjunction with state governors ensure only yes men and
women of same party hold sway. Take a look also at the appointment
of heads of courts in states, the refusal of Governor Inuwa Yahaya
to confirm Justice Beatrice Iliya as substantive Chief Judge or the
Kebbi case of Justice Asabe Karatu who was shut off from delivering
her judgement under Governor Atiku Bagudu’s watch or even the Cross
River situation in which it had to take concerted efforts by the
Nigeria Bar Association before Governor Ben Ayade swore in Justice
Akon Ikpeme as substantive Chief Judge highlights the chilling
effect of what could happen when boundless power is on rampage. If
those examples do not drive home the point, a poignant example that
takes the day is Governor Nasir Elrufai’s monarchical Kaduna State
where the Governor decides whose house to knock down, which
traditional institutions to abrogate, who should be behind bars and
how many civil servants should be at work.

I make the point to say that if we opt for states constitution
against the track record of how many state governors have fared,
the managerial ethos of constitutional reform will be in opposition
with the democratic imperative of checks and balances. The
Constitutional structural theory rests on the twin principles of
separation of powers and of checks and balances. The first
principle requires branches of government to be identifiably
discrete. The second assumes that the branches are separate and so
concentrates on promoting the checking of each by the others.

As Michael Parenti said in his _The Assassination of Julius
Caesar , diluting democratic power with a preponderantly
undemocratic mix does not create an admirable balance and
stability. In actual practice the diversity of form becomes a
subterfuge that allows an appearance of popular participation in
order to lend legitimacy to oligarchic dorminance.

WAY FORWARD

But what is the argument on the other side except that national
cohesion is sagging, national structures are failing, the
leadership is dangerously on its own frolic and the people are left
wondering, will the prediction of the 100-year doom of Nigeria
become a self-fulfilling prophecy? The journey to statehood
requires more than compliance to the 1933 Montevideo convention of
permanent population,defined territory, government or capacity to
conduct international relations. Although our scorecard is poor on
all those counts, it is failing more epically at humanizing
governance with empathy, competence, accountability and diversity
management. Section 14 (2) b states that the security and welfare
of the people shall be the primary purpose of government. Section
17 (1) of the 1999 Constitution demands that the state social order
be founded on the ideals of freedom, equality and justice. Section
17 (2) (C ) makes it imperative with for governmental actions to be
humane. But because there has been a condoned norm of obeying the
Constitution in breach rather than in compliance, a flip argument
to the implementation of chapter two of the constitution where
sections 14 and 17 are found is that the provisions are non-
justiciable. These non-justiciability arguments have in practice,
now moved into and corrupted Chapter IV of the constitution. Today
the one who is deemed to have rights is the one with might and the
rest of us have been left at their mercy. Even the right to express
pain is shut down digitally and analogously – (no thanks to the
twitter ban).

Nigerian leaders must normalize dissent, diverse perspectives
and accountability to the rule of law. And so as we converse on
this hallowed ground which came into existence as a citadel of
learning 73 years ago and more than a decade before our country’s
independence, we must draw inspiration from how a College of the
University of London located in Nigeria’s West, evolved into
independence, made Sir Abubakar Tafawa Balewa from the north its
first Chancellor, Prof. Onwuka Dike from the East its first Vice
Chancellor and has retained that diversity while keeping a steady
lead as one of the most prestigious universities in the world. We
must also take heed to the courage of our host, His Excellency
Engineer Seyi Makinde, FNSE who at a time the centre is coming
unhinged, has gathered us in this ancient city to think through and
hazard a future for our country’s democracy. Your Excellencies,
distinguished guests, there are many broken places in our country
but it has fallen to us to rise and fight strong for a just and
united Nigeria. We cannot afford to sublet that duty so let us take
the gauntlet and make hay while the sun still shines. I thank you
all for listening.