Observing Nigeria’s Constitution in Its Breach

Observing the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) in its breach, is nothing new. Some have argued that the reason for its incessant breach, is that the Constitution is an imperfect document which has outlived its usefulness; that it’s time for a Referendum, Constituent Assembly and all the other necessary steps required to usher in a new, improved and acceptable Constitution and Fifth Republic. On the other hand, others have also argued that there’s not that much wrong with the Constitution, and that how ever perfect a Constitution Nigeria has, with the self-serving mindset of our Politicians and so-called leaders, the Constitution will always be observed in its breach, once its provisions are at variance with their personal agendas. 

Nigeria’s Autocratic Democracy 

Since the inception of the Fourth Republic in 1999, Nigeria’s so-called democracy appears to be quite different from the concept of ‘Democracy’ in the true sense of the word. In the past, on this page, I defined the democracy that exists in Nigeria today as, Government of Politicians, by Politicians for Politicians, while former Military Head of State and former President of Nigeria, Olusegun Obasanjo’s recent definition is, “Government of a small number of people, by a small number of people, over a large number of people”. Using either definition, and the fact that it is alleged that the Nigerian Military Generals who are still alive today, always have a strong say about who becomes President of Nigeria, we see that even the type of system we have been running in the Fourth Republic to date, is, from the get-go, a clear breach of Sections 1(2), 14(2)(a) & (c) of the Constitution, as it 1) allows the governance of Nigeria or the control of the Government of Nigeria to be in the hands of persons or groups of persons; 2) deprives the people of their sovereignty and 3) deprives Nigerians of the right to effectively participate in their government.

There’s also Electoral Authoritarianism (Electoral Autocracy), so that even though there is the veneer of democracy, that is, people appearing to exercise their franchise by voting when general elections are held every four years, the elections are sometimes manipulated/rigged at various levels to achieve the desired results. The number of election petitions filed at the Tribunals, keeps increasing with every passing election cycle, which means that, if anything, the electoral process may be deteriorating instead of improving. President Umaru Yar’Adua of blessed memory, was honest enough to admit that the 2007 election that brought him into office was flawed, and advocated for electoral reform before his death.

If we are to be truthful to ourselves, we will all agree that the Fourth Republic has predominantly been an Autocratic Democracy, in which the basic principles of democracy appear to have been undermined by dictatorial practices. Nigeria appears to have a Hybrid System, whereby, once government policies, initiatives, actions or whatsoever-called deviate from the tenets of democracy - rule of law, separation of powers, due process etc (see Sections 4, 5 & 6 of the Constitution), the arbitrary/autocratic actions of government take precedence or are followed, over and above the provisions of the Constitution even when such actions are unconstitutional, contrary to Section 1(1) & (3) of the Constitution. In short, Nigeria’s so-called democracy, is in some ways, run side by side with autocratic practices; and, that is why for example, in November 1999, during the Obasanjo administration, there was what is now sometimes referred to as the ’Odi Massacre’, where Odi, a town in Bayelsa State was razed to the ground, allegedly in retaliation for militant activities and the murder of several law enforcement officers. In October 2016, during the Buhari administration, following allegations of corruption which, for the most part, couldn’t be substantiated, in a ‘Gestapo’ style operation in the dead of night, there was a DSS raid on the residences of judicial officers, as if they were searching for violent criminals who had been declared wanted by law enforcement agencies. In these two scenarios, judicial remedies were readily available to bring any wrongdoers to justice, but, instead of following due process and upholding the rule of law, Government preferred to use military style tactics - maybe more so, because, at the time, the two leaders involved were former Army Generals, General Olusegun Obasanjo and Major General Muhammadu Buhari, who claimed to have shed the toga of military dictatorship and become ‘born-again’ Democrats! Obviously, their actions betrayed their claims.  

Unfortunately, Nigeria appears to combine all the different forms of autocratic democracy rolled into one! Whether PDP or APC, we also have a somewhat Managed/Orchestrated Democracy, obviously not in the same category as a country like Russia which has been used as the prime example of same, but, all the same, one in which important democratic institutions are regularly manipulated by those in power.

The outcome of an autocratic democracy like we see in Nigeria today, is that the tools of democracy, including the Constitution and democratic institutions, are weakened. 

Example of Constitutional Breach: Security and Welfare of Nigerians 

By now, even non-Lawyers know Section 14(2)(b) of the Constitution by heart, that is, that the security and welfare of the people is the primary purpose of Government. 

Section 214(1) of the Constitution provides for the establishment of only one Police Force in Nigeria, the Nigeria Police Force (NPF), while Items 45 & 60(a) on the Exclusive Legislative List are Police; Other Security Services established by law; and Agencies established to promote and enforce Chapter II of the Constitution, respectively. This means that anything security, be it Àmòtèkun in the Southwest, Ebubeagu in the Southeast, or Hisbah in the Northern Sharia States, since they do not form part of the NPF and are types of ‘security’ agencies established by their various State Laws, they appear to be unconstitutional agencies. Even though Section 4(7) of the Constitution empowers State Houses of Assembly (SHAs) to make laws for the order, peace and good government of their States, and this would certainly concern the security and welfare of people, the same Section 4(7)(a) thereof, clearly excludes items on the Exclusive Legislative List from matters which SHAs can legislate upon, and that obviously includes security. Is this one of the imperfections in the Constitution? That a State, which is in charge of the security of its people, and SHAs, are unable to deal directly on their State security? See the case of AG Kano State v AGF (2007) LPELR-618 (SC) per Mahmud Mohammed, JSC (later CJN) on interpretation of the words in the Constitution and statute in their ordinary and literal meaning.

Some States have nevertheless, established security outfits to fight insecurity in their areas, in order to fulfil their foremost constitutional mandate of protecting the lives and property of their people, seeing as the existing security apparatus appears to be inadequate. While the Executive and Legislature have wasted over 25 years debating on whether or not to amend the Constitution to establish State Police, a few years ago, some Southern Governors decided not to continue to fold their arms while their people are attacked, killed and maimed by violent criminals regularly. Today, however, the Northern Governors are now in the forefront of clamouring for State Police. Kindly, note that, Hisbah wasn’t established to play the same type of role as Àmòtèkun or Ebubeagu; it was established mainly to enforce Sharia Law.

I was discussing with my friend, and I commented that, in the meantime, while this never ending debate on the pros and cons of State Police continues, why doesn’t the NPF do the needful, by recruiting local personnel in each State of the Federation to do community policing? It is trite that, Nigeria is under-policed, and something needs to be done about this urgently. 

Katsina State Hisbah

Interestingly, if unconstitutionality has levels, while Àmòtèkun and Ebubeagu are Level 1 unconstitutionality, Hisbah appears to be multiple levels of unconstitutionality. The Level 1 unconstitutionality of the former stems from the fact that, even if they cannot be said to be full fledged Police, only the National Assembly, and not any SHA is empowered to enact legislation to establish any security agency. 

The first level of unconstitutionality in the case of Hisbah, is the fact that it was established to enforce Islamic moral standards, based upon the unlawful introduction of Sharia Law in 12 Northern States of Nigeria contrary to Section 10 of the Constitution, which provides that neither the Government of the Federation nor that of any State may adopt a State religion. It is surprising that this unconstitutional implementation of Sharia which was started by then Governor of Zamfara State, Ahmed Yerima in 1999, hasn’t been declared by the courts to be the unconstitutionality that it is. This wrongfulness has deepened with the way Hisbah enforces Sharia Law, wielding some powers of a security agency, when the Constitution restricts Sharia to Islamic Personal Law - marriage/inheritance, and not criminal law, and in so doing, meting out all sort of outdated corporal punishments that can only be described as torture, when the Constitution doesn’t endow the Sharia Courts that offenders would be brought before, with requisite criminal jurisdiction to deal with them.

On Sunday, May 4, on News Central, I watched a mini-documentary on the Katsina State Hisbah (KSH), where victims of KSH’s abuse were showcased. Asmau Abba Shuaib was slapped and beaten, possibly because of her dressing. Hauwa Muhammad, another female victim’s mother, said her daughter’s experience with KSH was barbaric; that her daughter was dragged like a dog by four men, after being accused of indecent dressing. Mrs Muhammad stated thus: “There’s no law on earth that says you can brutalise a fellow human being, let alone a woman”. I concur. See Section 34(1)(a) of the Constitution on the prohibition of torture and inhuman treatment. What the KSH did in these instances, not only amounts to the offence of causing hurt or grievous hurt against these ladies (see Sections 240-243, 246, 247, 248 and generally, Chapter XVIII (Offences Affecting the Human Body) of the Penal Code Act 1960), but discriminates against women contrary to Section 42(1)(a) of the Constitution, as women appear to be the most targeted by Hisbah. In a true democracy, such cruel practices wouldn’t be permitted, let alone be the norm in certain areas. 

The KSH Commander, Dr Aminu Usman, who was featured in the same interview, was rather unapologetic about KSH’s activities. He stated that KSH punishing people, is following the Quran and Hadith. He said they are punished for gambling, wearing inappropriate clothing, playing music or going out late at night, as such is prohibited in Islam, and enforcement of compliance by beating is allowed in Islam. But, all these Islamic infractions, are not prohibited by the criminal law of the land. Furthermore, it is a false claim that the Quran and Hadith prescribe the punishment of beating for immodest dressing; nowhere in the Holy Book is such stated - see The Holy Quran 24:30-31; 33:59, and even if it did, the Constitution doesn’t provide for the implementation of the punitive part of Sharia Law in Nigeria. 

On the contrary, Section 38 of the Constitution guarantees the right to freedom of thought, conscience and religion. Adhering to religious instruction is voluntary, so that, even a Muslim cannot be forced to submit to Sharia Law. If a Muslim chooses to listen to secular or Christian music, the KSH isn’t empowered to breach such an individual’s freedom of choice, by stopping them from listening to same. 

Conclusion 

Some of the golden rules of democracy are the supremacy of the Constitution and utmost regard for the rule of law, and in their absence, we cannot really be said to be practising true democracy. 

While pursuing the security and welfare of Nigerians is constitutional, and the sentiment behind Àmòtèkun or Ebubeagu is good, that is, trying to secure the lives and property of Nigerians in those areas, in law, those agencies are standing on extremely slippery ground, and any serious Government would have regularised their status long ago, to make the fight against insecurity more efficient and effective.

On the other hand, the basis for Hisbah, the declaration of Sharia, is unconstitutional, while that of the establishment of Hisbah, like Àmòtèkun and Ebubeagu is questionable. The actions of Hisbah, like that of KSH, usually amounts to breaches of the fundamental rights of citizens. To be honest, an agency such as Hisbah, is actually antithetical to democracy, as several of the tenets of the religion it seeks to enforce, are guaranteed as fundamental rights and not prohibited by law. The fact that KSH even metes out punishments that are not prescribed by the Quran, is even more curious and troubling, since they profess to be followers of the Quran and Hadith. Even Sharia Courts hearing criminal cases and handing down death sentences is unconstitutional and unlawful, as the Constitution doesn’t endow the Sharia or Customary Courts with criminal jurisdiction.

It is time to decide whether Nigeria desires the development of her democracy, which necessarily demands upholding the supremacy of the Constitution and global best democratic practices, or if she wants to continue to regress, playing politics with religion and the like, while disregarding the rule of law. Whether an individual’s name is Munir or Martha, once they have reached the age of 18, it is their right to drink alcohol, indulge in amorous relationships if they so desire, and enjoy all the fundamental rights contained in Chapter IV of the Constitution. The first thing we were taught in Law is that, even though they sometimes intersect, Law and Morals are different. That what may be considered to be immoral, isn’t necessarily unlawful. The essence of a body like Hisbah, is to reject this. The framers of the Constitution knew what they were doing, when they included Section 10 in the Constitution, as forcing or enforcing religious doctrine doesn’t gel properly with the freedoms donated in a democracy. In a true democracy, particularly a multi-ethnic and multi-religious one like Nigeria's, the Constitution is supreme, not religion. 

In the News Central mini-documentary, one of the Speakers concluded by stating that the people believe that the Government of Katsina is using the KSH to serve a political agenda. And, this is one of the reservations of those who do not support the establishment of State Police. That it will become a tool of abuse in the hands of Governors, against the people and their political opponents, particularly if they are equipped with weapons like the NPF.