By Senator Dino Melaye (SDM
A beautiful thing just happened in the country of Chile on 25th October 2020 that gives me hope for troubled Nigeria going forward.
By an overwhelming majority of over 78% the People voted to do away with an oppressively undemocratic constitution midwifed by the military dictatorship of General Augusto Pinochet, but conceived form the intellectual loins of libertarian political economists and Nobel Prize winner James Buchanan.
It was a radical right-wing dictated social contract misleadingly called the Constitution of Liberty and approved by rigged referendum. It was legislative concrete around the feet of the people.
As the Professor Kristen Sehnbruch of the London School of Economics wrote for the Guardian October 28th, 2020 ‘for over 30 years’ Chile’s right-wing constitutions, ‘played a significant role in creating political elites who kept themselves in power, and prevented political reforms from keeping pace with social change and expectations.
A more educated middle class lived highly precarious lives: unemployment or illness brought many to the brink of poverty.”
You would be correct to think that this looks and sounds like Nigeria under the 1999 Constitution. Sehnbruch continues “Trust and confidence in institutions were eroded by political and institutional corruption scandals. Multiple inequalities and the powerlessness to confront them characterised the lives of many.”
Like Nigeria, Chile’s Police force regularly violated the human rights of Chileans. President Augusto Pinochet was arrested and charged in Spanish courts for torture, murder and the disappearances of Spanish citizens in Chile. Tortures and disappearances carried out by Pinochet’s ruthless secret police.
Sehnbruch continues “an unreformed police force was persistently violating their human rights. This month Sergio Micco, the director of Chile’s National Human Rights Institutes, presented a report that detailed 3,203 alleged human rights violations from the past year, explaining: “Chile is facing the most serious human rights violations since the transition to democracy … We are particularly concerned about … eye injuries, the abusive use of riot shot guns, and the inhuman, cruel and sexually degrading treatment of victims.”
Sounds familiar? Police, military and institutional reform under the Chilean constitution, required super majorities that were virtually impossible to achieve.
The radical libertarians had created a constitution that the common people cannot override political control by the rich and powerful. It is a ‘vetocracy’ being the elite obstruction of the will of the masses.
It is authoritarianism clothed in elections. It is dictatorship by stealth. Such constitutions are marked by casual cruelty and entrenched corruption. And where obstruction proved too unjust obfuscation under the legal morass of a constitution that never reflected nor was ever intended to reflect the will of the people.
Nigeria’s 1999 constitution is the cloned child of the 1979 Constitution. Both are product of military directives to a constitution drafting committee. And both are cut from the same dictatorial cloth that marked Chile’s constitution.
As Chile’s constitution paid lip service to human rights but made it virtually impossible to enforce some of these rights, so to Nigeria’s constitution, in Chapter 2, provides for fundamental human rights that citizens cannot bring claims to court under.
In their haste to throw off the colonial shackles, the Murtala/Obasanjo Regime did not even consider whether any other type of government than the presidential system of government would be better for Nigeria. We rushed headlong into cloning the American system of government.
However, like the Buchanan inspired Constitution of Liberty in Chile, we gave the president far more powers under our constitution than the American president and leader of the free world enjoys under the American Constitution.
This level of constitutional authoritarianism encourages rule breaking and norm busting, as this government has repeatedly done for example when it brazenly flouts court orders. Or when its agencies engage in flagrant and brutal violations of human rights such as SARS’s regular brutality and disappearing of our youth as I repeatedly warned, even in the Chamber of the Senate. Or the military and other security services when they open fire on peaceful demonstrators.
That both the 1979 and 1999 constitutions begin with words to the effect that “The Federal Military Government hereby decrees” already gives the game away, that these were more dictated constitutions than deliberated ones.
Professor Ben Nwabueze, one of our most eminent constitutional scholars and member of the constitution drafting committee of 1976 has come to regret the part he played in saddling Nigerians with this albatross. Noting the many flaws and errors in the constitution, he confessed “I was partly responsible” in an interview with the Vanguard Newspaper March 22nd, 2013. “One of the cardinal flaws in the constitution is the concentration of powers in the centre.”
The Committee basically took most of fiscal and revenue generating powers under the concurrent and residual lists of the 1963 constitution and gave them exclusively to the Federal Government. “And the result is the almighty Federal Government” that has produced disunity because of the intensity of the struggle to control the centre, concluding that “that has remained the feature of the Constitution up till today”.
The arrogant impunity of Federal Government can be seen in the high handed and contemptuous way it relates to weak client state governments as Professor Itsay Sagay, renowned legal scholar and head of this administration’s anti-corruption task force observed.
The centralization of power and ‘fiscal hyper centralisation’ being the tight grip Federal government holds on tax, revenue and spending has allowed federal government to largely ignore the agitations of the people at state and local level.
The youth have awakened and the government for all its bluster cannot buy its way out of this one, or blast its way through it the predatory SARS, Customs and other agents of government that the brave youth have confronted are just the beginning. Meaningful Police Reform is a good start.
But following Chile’s Lead we need a meaningful debate to create a constitution that in the words of Professor Sehnbruch forces “the political elites to be more inclusive and accountable, as well as enabling politicians to negotiate and implement necessary reforms.”
In other words, we need a constitution made by ‘We, all the Peoples of Nigeria”. Not one that has been prepared earlier, as cooking shows reveal, was ‘decreed by political, intellectual or military elites’ earlier.
A Constitution that anyone reading can immediately see a national conversation taking place and national consensus as to where Nigeria is headed. A Constitution that creates the Nigeria the old have yearned for and the Nigeria the Young can proudly look forward to. A constitution to govern us in this Promised land.