What Nigeria Lost By Abacha's Untimely Death Well-thought Out Provisions Of The 1995 Constitution

I was an elected member of the 1994-1995 National Constitutional Conference, which sat exactly for one year (June 26 1994 -June 26 1995) and had reasonable time to discuss and ponder over many thorny issues that concerned the Nigerian polity. We were anxious that the military should disengage as soon as possible and hand over to elected civilian governments at all levels. At one time we passed a resolution, later rescinded, setting January 1996 as the date for hand over. The work of the National Constitutional Conference culminated in a two-volume report, Volume 1 of which was report of the constitutional conference containing the draft constitution 1995.

In December 1995 we held a very successful "All politicians summit" At Eko Hotel, Victoria Island, Lagos which I had the privilege to chair. I describe the summit as "very successful" notwithstanding its disruption by agents of the government. It was obvious that General Abacha was in no hurry to disengage. We then formed the Institute of Civil Society, which again I had the privilege to chair, one of whose objectives was to sensitize the Nigerian public on the need for an early return to democratic ethos as we considered military rule which is imposed on and not elected by the populace, a vicious form of colonialism. It eventually materialised that Abacha set October 1, 1998 as the date for the transition from military to civilian government. But it was soon clear, judging by the decisions of all the five registered political parties to nominate him as the sole presidential candidate that it was his wish to hand over from Abacha as a military head of state to Abacha as civilian president. Some of us did not think that this was the right thing for Nigeria and at a meeting of the "G34" in April 1998, we decided to advise Abacha by a well considered memorandum not to countenance the prompting by sycophants that he should succeed himself. Within two months of the G-34 memorandum, Abacha was dead and so the question of self-succession also died a natural death.

There is no doubt that if it was necessary for anybody to flaunt anti-Abacha credentials, I was in a position so to do. Arguably, there was much that Nigeria gained by Abacha's untimely death, including release of some detainees and prisoners, accelerated transition to elected civilian administration midwifed by his successor, General Abdulsalami Abubakar, recovery of some looted funds etc. Although some of these so-called gains may have turned out in retrospect and with the benefit of hindsight to have been mixed blessings.

However, it is with a consideration of what Nigeria lost by Abacha's untimely death that I am here concerned. Before Abacha's death, "The Constitution of the Federal Republic of Nigeria 1995 (with Amendments)" had been finalised and was to have been promulgated by decree to come into effect on October 1, 1998. This constitution introduced some fundamental changes to Nigeria's previous presidential constitutions (1979 and 1989) based on experience garnered over almost four decades of Nigeria's independence, all calculated to conduce to a stable Nigerian polity within which all Nigerians could truly feel a sense of belonging and which would elicit the collaborative efforts of Nigerians to make the country a great nation.

With the death of Abacha, the 1995 Constitution was not promulgated. The reason for this is found in the report of the Justice Niki Tobi led Constitutional Debate Co-ordinating Committee set up by the General Abdulsalami government to propose a constitution for the incoming 1999 civilian administration. The 1995 Constitution was not adopted because it was suggested that "Nigerians raised compelling reservations" about it, holding forth that it was "a product of disputed legitimacy" and suffered from a "crisis of authenticity in the public consciousness." Significantly, the above-stated reservations emanated mostly from South-Western Nigeria, which had officially boycotted the 1994-1995 National Constitutional Conference and was therefore not prepared to accept that there was anything good that could come out of it. They, more or less, decided to throw away the baby with the bath water so to speak, and therefore preferred to settle with "the 1979 Constitution" (which), according to them, "had been tried and tested and, therefore, provides a better point of departure in the quest for constitutionalism in Nigeria." "Making only minor adjustments to the 1979 document, the Tobi committee recommended adopting the adjusted document as the new (1999) constitution."

Accordingly, Abacha's untimely death on June 1998 robbed Nigeria of the opportunity of having the 1995 Constitution promulgated on October 1, 1998. In order, therefore, to assess "What Nigeria lost by Abacha's untimely death" (the object of this piece) it would be in order to highlight a few of the salient and radical provisions of "the Constitution of the Federal Republic of Nigeria 1995 (with Amendments)," to wit:

1. Recognition of six geopolitical zones

S.229 (4): For the purpose of subsection (1) of this section, the six geopolitical zones of Nigeria shall be as set out in part III of the First Schedule To this Constitution.

1. zone | states

1. North-Central - Benue, Kogi, Kwara, Nasarawa, Niger, Plateau, and Federal Capital Territory, Abuja.

2. North-Eastern - Adamawa, Bauchi, Borno, Gombe, Taraba and Yobe.

3. North-Western | Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto and Zamfara.

4. South-Eastern | Abia, Anambra, Ebonyi, Enugu, and Imo.

5. South-South | Akwa Ibom, Bayelsa, Cross River, Delta, Edo and Rivers.

6. South-Western | Ekiti, Lagos, Ogun, Ondo, Osun and Oyo.

This is the first formal recognition of the six geo-political zones now in common usage politically in a legal or constitutional document.

2. Diffusion of federal executive responsibility

In addition to the offices of President and Vice President and Ministers, the Constitution provides also for the offices of Prime Minister and Deputy Prime Minister:

S. 149(2): "Subject to such reservations or conditions as may be made by him, the President shall assign to the Prime Minister responsibility for the general administration of the Government of the Federation"

S.149(4): "The President shall hold regular meetings with the Vice President, Prime Minister, Deputy Prime Minister and all the Ministers of the Government of the Federation for the purposes of -

a) Determining the general direction of domestic and foreign policies of the Government of the Federation (b) Co-ordinating the activities of the President, Vice President, Prime Minister, Deputy Prime Minister and the Ministers of the Government of the federation in the discharge of their executive responsibilities..."

Single 5 - year term of office for governor coupled with rotation of office of governor etc.

S. 149(4): "Subject to the provisions of subsection (1) of this section a Governor shall vacate his office at the expiration of a period of 5 years commencing from the date when (a) He took the Oath of Allegiance and Oath of Office..."

S.184(1): "A person shall not be qualified for election to the Office of Governor of... (b) He has been elected to such office at an immediately preceding election..."

S.229(2): "The Office of Governor, Deputy Governor and Speaker of the House of Assembly shall rotate among the three Senatorial districts in the state.

If the above provisions had been incorporated into the 1999 Constitution, two of the three senatorial districts of each state would have already produced governors in every state leaving the third (remaining) senatorial district to produce the Governor at the next election. All the problems currently bedevilling most states in the matter of "power shift" would not have arisen and all parts of every state would have been given a sense of belonging.

Single 5-year term of office for president coupled with rotation of office of President etc.

S. 138(2): "Subject to the provisions of subsection (1) of this section, the president shall vacate his office at the expiration of a period of 5 years commencing from the date when (a) He took the Oath of Allegiance and Oath of Office..."

S. 140(1): A person shall not be qualified for election to the office of President if ... (b) He has been elected to such office at an immediately preceding election..."

S. 229(1): "The following six principal offices shall rotate among the six geo-political zones created under subsection (4) of this section, namely -

The office of the President;

The office of the Vice President;

The office of the Prime Minister;

The office of the Deputy Prime Minister;

The office of the President of the Senate; and

The office of the Speaker of the House of Representatives.

Had the above provisions been incorporated in the 1999 Constitution, two of the six geopolitical zones would already have produced a President of Nigeria and a third zone would have been looking forward to producing the President in the next dispensation. The present controversy or argument as to which geopolitical zone or group of geopolitical zones or region should present the President in the next dispensation would have been narrowed down to manageable proportions.

30-year transition period for evolving a Nigerian nation as distinct from a country or "mere Geographical expression"

S. 2290(1): "The principle of rotation enshrined in this section shall be strictly adhered to by the political parties during the transition period of 30 years commencing from the date this Constitution comes into force."

During this "transition" period of 30 years, at the state level each senatorial district would have filled the office of Governor two times, the office of Deputy Governor two times, and the office of the Speaker of the House of Assembly two times, each term of office being of 5 years duration. At the national level each of the six geopolitical zones would have filled the offices of President, Vice President, Prime Minister, deputy Prime Minister, President of the Senate and Speaker at the House of Representatives for a term of 5 years each. Thereafter, the cry of "marginalisation" would have been a thing of the past. The 30-year period would have been used to positively and constructively promote state level and national integration at all levels, following which all positions could then be filled on the basis of merit and competence in the true democratic spirit.

Discharge of functions of President

S. 147(1): "Subject to the provisions of sub-section (2) of this section, if any vacancy occurs by reason of the death or resignation or the removal of the President from office (impeachment) in accordance with section 144, 145 or 340 of this Constitution, the Vice President shall hold the office of President for the period of not more than 3 months during which there shall be an election of a new President from the same zone, who shall hold office for the unexpired term of office of the last holder of the office."

On the few occasions when President Obasanjo has been threatened with impeachment by the National Assembly, a few members, instead of looking at the grounds canvassed for impeachment on their merits, preferred to consider what would be the necessary result of a successful impeachment process, namely: that the Vice President (currently from the North-Eastern geopolitical zone) would be the beneficiary of the exercise as he would step into the shoes of the impeached President. On one occasion, in the Senate, it was the Alliance for Democracy senators from the South-West, who did not in fact vote for the President in the first place who threatened hell and brimstone should the impeachment exercise proceed further. The 1995 Abacha Constitution anticipated this possibility and provided that the Vice President shall fill the vacancy for 3 months only as a maximum, while INEC would arrange to elect a President from the same zone (in this case, possibly Olu Falae?). With this provision, it would be possible to examine a President's breaches of the constitution and other misconduct objectively to see if they justify or warrant impeachment.

Farewell to "Winner takes all"

S. 148(7) "The majority of the number of ministers appointed pursuant to subsection (3) of the section shall come from the political party or parties on whose platform the President is elected."

S. 148(8): "Any political party which wins not less than 10 per cent of the total number of seats in the National Assembly or of the total number of votes cast at the election, shall, subject to the provisions of subsection (7) of this section be entitled to representation in the Federal Executive Council in proportion to the number of seats won by the party in the National Assembly."

This is a prescription for an all-party government with ministers drawn from all serious political parties (with 10 per cent of the votes cast at the National Assembly election). This is to promote consensus building rather than antagonism among the political parties; and holders of ministerial posts from parties other than the President's party will appreciate that they hold such positions as of right by virtue of the constitution and not as a gift by the President or his party. Certainly not an invitation to "come and chop."

Elimination of incumbency and its abuse to the electoral process

The December 1959 Federal Parliamentary Elections may have had its abuses some of which were highlighted by Harold Smith in his autobiography "Blue Collor Lawman" but the 1964 Federal Parliamentary Elections certainly had many more electoral abuses than the 1959 election.

Similarly, the 1979 Presidential, National Assembly and Gubernatorial elections may have had some abuses but they were, by comparison, much more free and fair than the 1983 elections. In the same way, in spite of any problems associated with the 1999 Presidential and other elections, they were certainly more free and fair than the 2003 edition. So, historically, it would be generally accepted that the incumbency factor does not promote free and fair electoral processes. Based on this historical experience, the Abacha 1995 Constitution provides as follows:

S. 140(1): "A person shall not be qualified for election to the office of President if

(b) He has been elected to such office at an immediately preceding election..."

An incumbent President and incumbent Governors are therefore disqualified from standing election for the same office during their incumbency. This eliminates the incumbency factor and the abuses arising therefrom in connection with the electoral process.

In summary, because of Abacha's untimely death in June 1998, "the Constitution of the Federal Republic of Nigeria 1995 (with amendments)" was never promulgated and Nigeria, therefore, lost the benefit of some of its well-thought out provisions which were intended to promote justice, equity, and national unity in the process of transforming Nigeria from a country of many ethnic nationalities into a modern nation-state within a "transition period" of 30 years. This is what Nigeria lost by Abacha's untimely death.

Ekwueme is former Vice President of the Federal Republic of Nigeria and former Board of Trustees Chairman of the Peoples Democratic Party.