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Beyond constitutional review 08 Jun 2021

As Nigeria slouches and wobbles to a precipice, its federal legislators hold consultations in the six geopolitical regions to review the constitution. The consultations may be on the mistaken view that such a constitutional review holds the key to resolving Nigeria’s many economic and political challenges. Yes, sound constitutional frameworks are critical resources for economic and social development. The constitutional determination of state formation and economic development is well established in the literature of political economy. Acemoglu and Robertson offer additional support to this view with their works “Why Nations Fail” and “The Narrow Corridor.”  
    
So, on the surface, fixing the constitution would look like the most important task. But in the Nigerian instance, it is actually a waste of time, or even worse, a loss of time to do something more effective and valuable for political and economic order in a country buffeted by many headwinds. Political order will be better served if the elites focus on generating consensus on the key foundational issues of governance and move away from divisive and patrimonial politics.
    
Someone would be surprised that in the midst of the gravest security crisis since the civil war, when all enlightened voices are shouting about state failure, anyone would fault a resort to tinkering with the constitution to provide institutional enablement for good, legitimate, and sustainable governance. But if you look back in history, you will doubt that this round of jamboree will achieve anything really significant. If we want to solve our problems, then we need a more fundamental institutional revision than a tokenistic constitutional review can achieve.
    
Now, let us put this in context. Nigeria is doing badly in every indicator of economic development and state stability. Although the economy has grown marginally by 0.5% in the first quarter of the year, factor productivity is exceptionally low even as many states continue to spend much of their federal allocations to service a bloated civil service. The Nigerian National Petroleum Corporation (NNPC), the country’s national oil company, cannot fund federal allocation any further because of dwindling revenue from crude oil and escalating fuel subsidy payments. The national grid has collapsed more than twice in the last month. Inflation is high. Electricity prices are expected to increase exponentially in July. Unemployment is at record high. These point to impending more shrinkage in disposable income for impoverished households.
    
These economic tribulations combine with severe political instability to create a perfect storm. Southeast, which had been the nation’s safest region, has become the site of targeted violent attack on police and law enforcement institutions and facilities. Nigeria now resembles Robert Kaplan’s The Coming Anarchy.    
    
Isn’t this a perfect setting for a constitutional review, some might ask. But the problem is that the more we review the constitution, the more it becomes unworkable. One review begets another, and things never get better. Since 1999, it has been four reviews, one every four years. Every administration in Nigeria since the Fourth Republic has had at least one constitutional review.
    
Constitutional reviews in Nigeria amount to pretty little. The big issues are side-stepped because there is no national consensus on them. The reviews are not usually preceded by rigorous public debate and there is little effort to map out critical constituencies and provide opportunity for difficult conversations needed for a trans-formative constitution-making.
    
In past reviews, needed consequential amendments never get passed into law after the jamboree. The reviews did not settle contentious issues that can pivot to stability and economic growth. They end with insignificant fixes fit for ordinary law-making. We spent billions of naira and wasted thousands of legislative hours to end up with rearranging deadlines for filing election petitions.
    
Superficial constitutional reviews will not reverse the crises of state formation that are rooted in incentives structures. The elite divide is huge. As the economy falters and environment and social forces enhance competition for scarce resources, a quick resort to constitutional review without generating elite consensus is a waste of time, especially when the south is more agitated, but the north holds the legislative veto to shut down any proposed change. The President, a northern partisan, has never signed any of the past amendments, and has already signaled he is against any form of restructuring.
    
Again, changing constitutions frequently as we do damages political stability. Empirical evidence and political theory strongly suggest that stable democracies rarely review their constitutions. Many unstable polities have altered their constitutions severally. The logic is simple. A constitution is a counter-majoritarian device. It puts important issues of collective wellbeing above the pale of partisan politics. Frequent alterations bring these foundational issues back to politics. The result is that each successful coalition renegotiates the foundational issues of the commonwealth. This is the recipe for more instability.
    
The Nigerian political elite lacks consensus on critical issues of statecraft. We need transformative leadership to generate national consensus on those issues. A legislative vote is not the beginning but the end of that process. The beginning should be robust, structured dialogue amongst the elite. This can be in the form of a referendum (like in Chile), a national conference, or long-running national dialogue as advocated by the Southern Governors Forum.

Sam Amadi, a former Chairman of the Nigerian Electricity Regulatory Commission, is an Associate Professor and Head of the Private and Property Law Department at Baze University, Abuja.