NIGERIA

REPORT OF NATIONAL YOUTH

CONSULTATION ON CONSTITUTIONALISM

AND RULE OF LAW IN NIGERIA

___________________________________________________________________________________________

Lead Organization:

YOUTH INITIATIAVE FOR ADVOCACY, GROWTH & ADVANCEMENT 35, S.O Williams Crescent, Anthony Enahoro Str, Utako

+234 8032894709, 8060763786 yaiafrica@yahoo.com, yiaga@yiaga.org

www.yiaga.org twitter @YIAGA

Introduction

1. Context

Most countries like Nigeria practice constitutional democracy which presupposes the

existence of a supreme law that provides the framework for the governance of a country.

Additionally, the document births inter-alia individual rights capable of enforcement in the

court of law. Though Constitutionalism clearly denotes the existence of a Constitution, it

cannot be reduced wholesomely to the simple existence of a formal written Constitution. It

encompasses the legal and political acceptance of the superiority of the Constitution and

constitutional principles over all other laws. Emphatically, Constitutionalism aptly

proclaims the desirability of the rule of law as opposed to the rule by the arbitrary judgment

of a mere fiat of public officials.

Africa is undergoing different shifts in democratic consolidation, observance of the rule of

law and protection of human rights. These shifts have affected the quality of governance and

citizens’ participation in the democratic process. Emphatically, the preponderance of human

rights violations, disregard for the rule of law and constitutionalism has occasioned

agitations and advocacy for the entrenchment of democratic principles, observance of rule of

law and most importantly upholding constitutional order.

It is against this background that the Department of Political Affairs of the African Union

Commission convenes a High level dialogue annually to provide a conducive avenue for

Member States, civil society and other stakeholders including the private sector,

philanthropists, and development actors to engage and share comparable experiences and

lessons on how to improve governance, consolidate democracy and foster effective realisation

of human and peoples’ rights on the continent.

In recognition of the critical need to streamline the concerns and perspectives of young

people into the discourse on Constitutionalism and Rule of Law in Africa, the Department of

Political Affairs of the African Union Commission facilitated National Youth Consultations

across countries in Africa. Basically, the National consultations focused on interrogating

country-level trends on Constitutionalism and Rule of Law and providing youth perspective

to the emerging trends on constitutionalism.

Youth Initiative for Advocacy, Growth & Advancement (YIAGA), Youth Alliance on

Constitution & Electoral Reforms (YACORE), Youth Hub Africa, www.blcompere.com (a

social media for social good focused blog) and Know Your Constitution Initiative of the

Constitutional Rights Awareness and Liberty Initiative (CRALI) led the national youth

consultation in Nigeria.

The country-level consultation presented an apt opportunity for young Nigerians to x-ray

emerging trends of Constitutionalism and Rule of Law in Nigeria which illuminates the

flagrant abuse of power by public office holders, disregard for the rule of law, abuse of human

rights, absence of public accountability, social and political alienation of young people from

national development efforts etc.

During the online and offline consultation hosted in Nigeria, participants reached consensus

on the content and principles of constitutionalism and rule of law. They include;

I. The validity of every act of governmental authority affecting or likely to affect the

rights, duties and obligations of the citizenry must be in accordance with law;

II. Supremacy of the law is a fundamental element of rule of law. In principle, the

constitution is supreme because it describes itself as the supreme law of the land.

Adhering to the principle of constitutional supremacy is a function of our treatment

of the subject of impunity;

III. Public officials hold power in trust for citizens hence their actions must be

conducted within the bounds of defined rule and regulations that guarantee public

accountability;

IV. The non existence of marginalization, discrimination and enjoyment of undue

privileges by ‘sacred cows’. In other words, constitutionalism guarantees equality

before the law;

V. Constitutionalism and rule of law are predicated on the respect of rights and

freedoms of individuals;

VI. The Rule of Law prescribes that everything is done through a legal process by

following laid down legislations, regulations and rules for each process.

2. Objectives of Consultation

1. Assess the state of constitutionalism and rule of law in Nigeria and Africa;

2. Examine the socio-political dynamics of constitution making and reforms processes

in Nigeria and Africa;

3. Assess the emerging trends, challenges and opportunities to strengthen

constitutional order and rule of law in Nigeria and Africa;

4. Facilitate the incorporation of youth concerns and perspectives into discussions

focusing on Constitutionalism and Rule of Law in Nigeria and Africa;

5. Encourage the promotion of African Charter on Democracy, Elections and

Governance, African Youth Charter and other related AU instruments on popular

participation, human rights and governance;

6. Develop an agenda for promoting constitutionalism and the rule of law in Nigeria and

Africa.

3. Methodology of the Consultation

The National consultation was hosted on virtual and offline platforms. 30th -31st October 2013

featured the facebook consultation while the twitter consultation was conducted on 1st

November 2013. Notably, the twitter consultation recorded a total of 167,000 accounts with

the hashtag #YouthConsultation while the facebook consultation was hosted on @YIAGA fan

page with over 9,540 likes. The physical Consultation was conducted in Abuja on

Wednesday, 6th November 2013 with over 60 young Nigerians from diverse youth groups in

attendance. The participants were drawn from youth organizations across Nigeria.

Representatives of political, religious, traditional and cultural youth associations were

invited to participate in the consultation.

The National Youth Consultation on Constitutionalism and Rule of Law in Nigeria provided

a platform for young Nigerians to critically assess the trends, challenges and prospects of

Constitutionalism and Rule of Law in Nigeria. Speaking on behalf of the consultation

facilitators, Cynthia Mbamalu YIAGA’s Research & Programs Manager stated that a

prosperous society is firmly held by strong pillars of constitutionalism and rule of law

because it promotes positive trends of peace, good governance, security, fundamental rights

and social justice. She strongly opined that the youth have a major role to play in promoting

constitutionalism and rule of law and ensuring that leaders are accountable to the people.

Goodwill Messages were delivered by Mr. Rotimi Olawale (Representative of the African

Youth Panel), Comrade Jude Imagwe (Special Adviser to the President on Student and Youth

Affairs). The Keynote Address was delivered by Dr. Tunji Olaopa, Permanent Secretary,

Federal Ministry of Youth Development. In his address titled ‘What do the youths want?

Youth Charter and Constitutionalism’ he advocated for constitutional reforms that remove

exclusionary clauses restricting youth from electives offices.

The consultative Technical Plenary Sessions had a rich faculty comprising of Prof. Chidi

Odinkalu (Chairman National Human Rights Commission), Leonard Ugbajah (Legal

Practitioner), Prof. Sam Egwu (United Nations Development Programme, UNDP), Dr.

Fatima Akilu (Office of the National Security Adviser), Nana Nwachukwu (Gender

Advocate/Legal Practitioner), Eze Nwagwu (Chair, Partners for Electoral Reform), Prof.

Okechukwu Ibeanu (Chief Technical Adviser, INEC), Ifeyinwa Okadigbo (Gender

Advocate), Bukhari Jega (Youth Alliance on Constitution and Electoral Reform, YACORE).

The plenary sessions focused on issues like; “Promoting Constitutionalism and Rule of Law”,

“Human Rights and Security”, “Leadership, Governance and Accountability” and “Elections

and Youth Participation”. The consultation moved into Syndicate Groups Session. The

Syndicate Groups Session provided an opportunity for in-depth debates on current issues on

constitutionalism and rule of law in Nigeria.

4. Issues of Constitutionalism and Rule of Law identified during the consultation

4.1 Legitimacy of the Nigerian Constitution

The drafting of constitutions is a recurring decimal in Nigeria’s chequered political

history. Right from the colonial period, Nigerians were barely involved in the art of

constitution making. It is acceptable knowledge that the British colonial overlords

employed constitution making to consolidate their imperial strategies. Post colonial

Nigerian leaders have also utilized constitution drafting to ensure regime longevity.

The current 1999 constitution is a product of haste because the receding military

junta was in a hurry to leave the political turf. The Constitution has a foundational

problem as it is merely a rehashing of the 1979 Constitution. Consequently, the 1999

constitution has among other things the trappings of military centralization of power

resulting in de-federalization of Nigeria and the consequent clamour and agitation for

the amendment of the constitution.

Since the coming into force of the current constitution on May 29 1999, none of its

provisions has, so far, been amended despite citizens agitations until 2011 during the

electoral reform. The legitimacy of the constitution has always been called to

question because the people never participated in the drafting of the constitution. It

was said that the Constitution lies against itself in its preamble where it states that

‘We the people of Nigeria’ when in actual fact, the people never participated in

making that proclamation in the constitution.

A cardinal feature of democracy remains the active participation of the people in

governance. The National Assembly recently constituted a constitutional reform

committee to review the 1999 constitution of the Federal Republic of Nigeria. Efforts

were made by citizens to engage the constitution review process despite the limited

space of participation provided by the National Assembly. The outcome of the voting

on the proposed amendments in the National Assembly was deemed to be at variance

with the wishes and aspirations of the people. For example the Nigerian Senate

rejected most recommendations advanced by young people e.g. local government

autonomy, independent candidacy, lowering the age criteria for contesting elections,

constitutional definition of youth, enforceability of socio-economic and political

rights etc. Whilst the lower house voted in favour of the recommendation on

independent candidacy, local government autonomy and establishment of the

Electoral Offences Commission, their Senate counterparts did not include any youth

issue on their template on constitutional amendment.

4.2 Non compliance with international agreements and domestication of

regional instruments

There is a preponderance of regional and international instruments that guarantee

democratic governance and human rights in Africa. Nigeria as a country is very quick

to sign or ratify these instruments. Regrettably, domesticating and implementing

international instruments has been very poor in Nigeria. For example, the African

Youth Charter which is a definitive statement articulating actions and statutes on the

roles and integration of African youth in mainstream development and politics is duly

ratified by Nigeria. However, its implementation leaves so much to be desired. Young

people in Nigeria still suffer different forms of political alienation and social

exclusion. The African Youth Charter clearly defines a youth as any person between

the ages of 18 – 35. The National Youth Policy also recognizes this definition but in

practice the country is yet to officially accept this classification of youth.

The non-justiciability of Chapter II of the 1999 Constitution exposes the hypocrisy

and deceit of the Nigerian government. As stated earlier Nigeria is a proud signatory

to the African Youth Charter and the African Charter on Human and People’s Rights

which contains justiciable socio-economic rights. Conversely, the provisions under

Chapter II of the Nigerian Constitution which prescribes socio-economic rights are

non-justiciable. For example, the right to life and the right to health care. A person

who cannot afford healthcare would have his right to life directly breached by the

fact that he is not legally entitled to free healthcare. Furthermore, this hypocrisy

contributes to the high level of unemployment rate which is pegged at 38% and the

figure keeps rising.

4.3 Human Rights

Section 14 of the 1999 Constitution provides that the primary responsibility of

government is the protection of lives and properties of its citizens. Young people note

with great concern the high rate of human rights violations believed to have reached

an unprecedented height. Recent developments in the polity clearly reveal that the

Nigerian state does not recognise and respect fundamental rights and freedoms. The

alleged killings in Baga, Bornu state by the Nigerian Military, the government’s ban

on #Fuelling Poverty (a video documentary exposing corruption and impunity in the

fuel subsidy scheme), The killings of four students of the Nassarawa State University

during a peaceful student protest, the extrajudicial killings and continuous torture of

detainees are clear indicators of the poor state of human rights protection in Nigeria.

Young people are the potentially vulnerable group that suffer these forms of human

rights violation. The Human Rights Watch, Amnesty International and the U.S 2012

Human Rights Reports on Nigeria lay credence to this postulation.

Nigeria is currently faced with security challenges ranging from terrorism and

insurgency especially in the north eastern part of Nigeria. Whilst the rise in

insecurity has occasioned the violation of human rights (freedom of movement,

respect for human dignity and right to life, right to private life etc) in the some areas

it has also taken centre stage with regards to Nigeria’s prioritization of its National

security interests, leading to both improvements and developments in strategic

communication approached within the various security agencies. There are several

credibly attested allegations of gross violations by officials of the Joint Task Force

deployed to north east Nigeria to combat terrorism and insurgency. The allegations

include summary executions, torture, arbitrary detention amounting to internment

and outrages against the dignity of civilians, as well as rape. Most of the allegations

against the Joint Task Force clearly appear to raise questions of proportionality of the

use of force and standards applicable to the conduct of the armed forces in internal

security operations. This situation raises apprehension on viability of state response

in the fight against terrorism and insurgency. The Interim Assessment Report on the

Baga Incident and the situation in North-East Nigeria validates this apprehension on

the part of citizens’ most especially young people.

4.5 Electoral Process and Youth Participation

Elections are the pathway to achieving and strengthening democracy. Credible

election is considered to be the most potent ingredient for good governance in any

country and Nigeria is not an exception. Since her return to democracy, Nigeria has

organized four successive elections in 1999, 2003, 2007, 2011 and none of them was

adjudged to be hitch-free and credible except the 2011 elections that witnessed

tremendous improvement in election administration in Nigeria.

Nigeria has a burgeoning youth population that provides a huge social, economic and

political capital for the development of the country. With over 60% of the country

voting population dominated by young eligible voters, it is critical to give them their

rightful place in the political space.

In an attempt to guarantee proper management of elections in Nigeria, the Nigerian

Electoral Act has been amended at different times. However, little attention is paid

to how the electoral law makes youth participation and inclusivity a priority. Despite

the immense contributions of young people to democratic development in Nigeria,

the current political class has failed to appreciate ‘youth-power’ and the dynamics

they bring to bear in electoral politics. The political process is perpetually skewed to

exclude young people from qualitative participation. This marginalization and

exclusion of youth in political participation and decision making is underscored by

trivial responsibilities apportioned to them such as posting of posters, distribution of

campaign materials, singing and dancing during campaigns and party conventions,

mobilization of thugs and crowds. These can neither be referred to as inclusion nor

participation since they do not translate into access to the structures of decision

making. The age qualification for running for office, high cost of running political

campaigns, non-recognition of the proper definition of youth and government

interference and decimation of youth organizations are key factors that militate

against increased youth political participation.

An independent election management body guarantees credible elections and

restores citizens’ confidence in the electoral process. To safeguard the electoral

process from undue interference, manipulation and political manoeuvring, it was

contended that the election management body should enjoy absolute independence

(financial and operational independence), though with some checks and balances to

avert arbitrariness. In Nigeria, the Chairman of the Commission is appointed by the

President who is the leader of a political party. This status quo raises serious concern

on the part of the citizenry. Citizen groups have been involved in robust advocacy on

the need to reinforce the independence of the electoral commission through electoral

reforms and constitutional amendments. It is believed that divesting the power to

appoint principal electoral commissioners from the President will deepen the

independence of the Commission.

Changing or amending electoral laws within six months before elections portends

great danger to the electoral process. This may usher in a regime of impetuous

amendments with the potentials of conferring advantage to some vested interest

group (s) or person (s) against national interest.

4.5 Weak democratic institutions

In June 2009, President Barack Obama while on his visit to Africa spoke passionately

on the fact that Africa does not need strong men but strong institutions that promote

democracy, abhors corruption, respect human rights and fundamental freedoms.

Nigeria is the largest Africa oil producing state with over 150million population but

institutional weakness has crippled socio-economic and political development.

Public institutions are not independent of political manipulations and governmental

controls. In addition, decisions are taken based on the whims and caprices of

individuals appointed into offices not based on institutional norms and values clearly

prescribed in statutes or policy instruments establishing such institutions. The

abysmal level of impunity and corruption in Nigeria is exacerbated by the problem of

weak institutions that are unable to enforce the law e.g anti-corruption agencies and

security agencies. These weak institutions results in the inability of citizens to hold

those in accountable.

5. Recommendations and conclusion

5.1 Constitution Reforms

Any document that purports to be the ground norm or fundamental

law of the land and ascribes to itself supremacy and subordinates ‘any

other law’ to its overarching provisions must enjoy the full

participation of the people. Therefore, for any constitution making

and/or review process to be credible it must be predicated on the

principles of inclusivity, diversity, participation, openness,

transparency and legitimacy.

The constitution making and/or review processes must take on board

the involvement of young people at all levels. The place of the youth in

the democratic process remains cardinal for the growth of the nation

especially in a country like Nigeria where the youth constitute 60% of

the nation’s population.

Constitutional enactments that remove exclusionary clauses

restricting youths from elective offices and recognizes them as viable

participants in the governance process should be promoted. For

example, constitutional provisions that stipulate age criteria for

running for elective offices should be removed. There should be a

proper classification in the Constitution in conformity with the

African Youth Charter which clearly defines a youth as any person

between the ages of 18 and 35.

5.2 Cultivating a culture of Constitutionalism and respect for the Rule of Law

Imbibing a culture of constitutionalism among the citizenry is critical

to the institutionalization of the rule of law as the basis deepening

democratic governance. There is need to strengthen the means for

increasing the respect for rule of law. When the law is respected, it

generates multiplier effects which enhance other democratic practices

that benefit the youths. This can be done through the promotion of

activities that popularize the values of constitutionalism eg freedom,

good governance, plurality, tolerance, democracy etc.

5.2 Safeguarding human rights and National security

Strengthening Human Rights Institutions: The structural and

institutional framework of human rights institutions should be built in

such a way that they provide easy access to the people and victims of

rights violations;

Engaging in advocacy and submitting legal interventions to prevent,

minimize and reverse the negative impact that arbitrary national

security laws and policies have on the Rule of Law and human rights;

Citizens should be involved in monitoring developments relating to

counter-terrorism and human rights. They should be involved in

strategically intervening against violations of rights across especially

rights associated with the right to life, torture, and the deprivation of

liberty;

Ensure that the government incorporates international human rights

standards into decision-making when shaping counter-terrorism

policies and responding to national security measures;

Government should as a policy commit itself to the principle of legality

in the conduct of the operations in internal security deployment. In

keeping with this policy, Rules of Engagement should be adopted,

published and regularly reviewed.

5.3 Credible electoral process that guarantees citizens participation

There is need for far reaching electoral reforms that guarantee the

independence (financial & operational autonomy) of the election

management body and creates an enabling environment for citizens to

exercise their franchise irrespective of age, gender, religion and tribal

affiliations.

The Justice Mohammed Uwais-led Electoral Reform Committee of

2008 identified electoral issues that need to be addressed to raise the

democratic standards in Nigeria’s electoral process. Any meaningful

electoral reform of the electoral law should be reflective of the

recommendations contained in the report.

Furthermore, Nigeria is a signatory to numerous democratic and

political rights covenants, charters, and agreements. Some of these

multi-national instruments on governance, democracy, human rights,

peace and security collectively seek to underline the country’s

credentials in subscribing to minimum universal standards that define

best practices in human management, obligations and responsibilities

by both leaders and citizens. Some of the notable agreements that have

been ratified and domesticated by Nigeria include the United Nations’

Universal Declaration of Human Rights (1948), the African Charter on

Democracy, Elections and Governance (2002 and 2007), the Economic

Community of West African States (ECOWAS) Protocol on

Democracy and Good Governance (2001) and the Supplementary

Protocol of the ECOWAS Protocol on Democracy and Good

Governance relating to the mechanism for Conflict Prevention,

Management, Resolution, Peacekeeping and Security (2001). It is

important for Nigeria to fulfil its international obligations by

implementing these instruments in her electoral process.

Appointments into the board of the electoral commission should be

conducted through an open, democratic and transparent process

devoid of political interferences. This will encourage the participation

of the young people in the electoral process. The electoral demography

which is dominated by young people makes it imperative that they are

given adequate space within political parties to participate as

candidates and occupy party leadership positions;

There should be an increase in youth participation in regional and

continental election observation mission;

Political parties should as a policy ensure all party youth leaders are

between the ages of 18 to 35 as defined by the National Youth Policy

and African Youth Charter. Parties should also ensure youths actively

participate in decision-making process especially during party

congresses or conventions;

5.4 Advocacy and popularization of regional instruments and values of constitutionalism by youth and civil society organizations

A virile and enlightened youth population, particularly one bolstered by a

vibrant civil society and press is crucial for the promotion of the principles of

constitutionalism. Youth organizations and civil society groups can play a

significant role in popularizing regional instruments relating to

constitutionalism and rule of law. Popularization and advocacy activities

could include the deployment of new media and traditional media tools to

promote constitutionalism, internships and exchange programs on

constitutionalism and rule of law, translating constitutions in local languages,

mainstreaming civic education into education curricula of academic

institutions etc

5.4 Strengthening institutions and stakeholder capacity Consistent capacity development on the values of constitutionalism and rule

of law will deepen institutional capacity and enhance democratic governance.

It is asserted that the weak state of our institutions is occasioned by the lack

of insight on the principles of constitutionalism and rule of law. There is a

great need to strengthen the capacity of different stakeholders groups in the

democratic process on the values of constitutionalism e.g. legislators, political

parties, judges, civil society organizations.

6. Conclusion

In conclusion, constitutionalism and rule of law deepens democratic governance and

promotes socio-economic and political development. Rule of law can only be effective

in a country that promotes transparency, inclusivity, freedoms and democracy.

Citizens have a fundamental role to play in ensuring that they monitor the adherence

to the principles of constitutionalism and rule of law. Young people must rise to the

responsibility of consistently holding their leaders accountable based on the values of

constitutionalism. Securing a future devoid of constitutional disorder and flagrant

disregard for rule of law hinges on citizens’ ability to be vigilant and proactive in

undertaking strong and extensive advocacy in promoting the principles of

constitutionalism and rule of law.