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 1 st 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 YIAGAs 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 Nigerias 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 Peoples 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 governments 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 Nigerias 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 nations population.

Constitutional

enactments

that

remove

exclusionary

clauses For

restricting youths from elective offices and recognizes them as viable participants in the governance process should be promoted. 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 Nigerias 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 countrys 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.