The Case for Real Constitutional Reform
By Moses E Ochonu
A few years ago, at a conference in New Orleans, Louisiana, USA, I was in the audience when a politician who is now a governor in a southwestern state gave a well-received presentation on elections in Nigeria. His talk pivoted from the familiar diagnostics of the many layers of electoral fraud to the more complex question of electoral reform.
At the end of his presentation, I asked him a simple question: is electoral malfeasance not a symptom of a larger malaise, namely constitutional and structural defects, which in turn nurture the electoral desperation that is the catalyst for electoral malpractice? Stated differently as a statement, my thinking was that we are merely engaging in the self-deceiving gimmick of remedial therapy, and that we are focusing on symptoms and neglecting causes. My contention was that perhaps all the talk about electoral reform signals our hesitation to confront and reform the unitary constitutional order in the country, which confers godlike resource appropriation and distribution powers on executive officeholders in Abuja and the States, highly coveted perches that fuel desperation and electoral fraud.
The politician's answer was a reasonable, understandable, if clichéd, reassertion of a widely held sentiment endorsing incremental change over radical, root-cause transformation. He understood and empathized with my position that the root of electoral malpractice is a unitary state fattened with excessive power over political outcomes and resource distribution. He also agreed that because the attainment of political power confers instant, unchecked control over vast resources, the struggle to get to Abuja or to any of the thirty-six state government houses is necessarily fraught with fraud and desperation, which have the capacity to defeat or compromise even the most determined stab at electoral reform.
The ideal solution, the presenter conceded, would be to institute a truly federal constitutional order in which power and control over resource distribution are decentralized, a system that departs from the current one where resources accrue to Abuja, which then uses its discretion to allocate these resources and to compel anti-people, election-distorting alliances, cooperation, and acquiescence at the state level. The foundational solution to our electoral crisis, he agreed, was to starve Abuja, giving it only what it needs for defense, immigration, and external affairs, thus a) reducing the intensity of the struggle for federal political office and b) giving citizens at the state level a reason and the leeway to demand and enforce both financial and electoral transparency without having to contend with federally funded repressions, immunities, and impunities.
While my interlocutor supported a return to a true federal structure that could make the current debate about electoral reform moot, he however cautioned that we should not "let the perfect become the enemy of the good." In other words, electoral reform that would improve our electoral practice was better than no reform at all, and an insistence on addressing foundational issues that occasion our electoral problems should not stand in the way of pursuing what was possible, doable, and practical: cleaning up how elections are conducted and making sure that electoral outcomes reflect the will of voters.
As presidential incompetence unfolds and as the nation faces threats from a combustive cocktail of corruption, terrorism, crime, and infrastructural decay, conversations and debates have turned, once again, to the recurring question of whether electoral transparency and its supposed product—accountability—are the remedies for the Nigerian malaise, or whether a more fundamental, revolutionary restructuring of the union is overdue.
The debate is still unfolding. Some continue to put their faith in electoral reform, arguing that rigged elections perpetuate corruption and incompetence, and hurt accountability and transparency in governance. Rigged elections, they also contend, beget more rigged elections, a self-replicating cycle of gloom that, over time, will imperil the union. Their thesis is that the problem lies not in the structures and institutions of the union but with electoral practice, which should be guided by better rules, laws, and procedures. Get elections right and all other things will fall gradually into place, goes the argument. To these Nigerians, it is not the current structural configuration of Nigeria, that is, the unitary identity of the state, that is the problem per se, but rather the absence of true democracy, marked most visibly by recurring electoral fraud.
I sympathize with this position as a mechanism of mitigation and I respect its proponents as well-meaning patriots, but I reject it as a first-order solution. Honest electoral reform may emplace sound ground rules and clean up our electoral system to some degree, but it is only a matter of time before such rules bow to the perverse creativity of Nigeria's political class. And this creativity grows as the union becomes even more unitary in its approach to resource appropriation and distribution. The political class has an infinite capacity for perverse innovation that is birthed by desperation, which in turn is anchored on a more fundamental desire for access to the all-conquering realms of power in Abuja and the states. This is the conundrum that we need to overcome. Electoral reform may indeed improve our democratic practice, but it would only be a Band-Aid on our gaping national wound. It would not solve the debilitating structural impasse of the nation.
The Unitary State Is the Enemy
Without a reform of the unitary structure of the Nigerian state, citizens, lacking a sense of investment in a distant government nurtured by a distant oil revenue source, will remain indifferent to how government business is conducted and how elections are executed—indifferent enough to unwittingly help sustain the status quo and its perennial offering of electoral malpractice. Without going back to and resolving our existential questions, Abuja will continue to be a resource-sharing bazaar, and political fights over participation in that bazaar at the national and state levels will defeat any electoral reform initiative no matter how sophisticated and well-intentioned.
Returning to a truly federal system will starve Abuja of funds and force corrupt state governors and their political and bureaucratic allies, now unprotected by the fiscal might of Abuja and lacking the alibi of Abuja's superintendence of the commonwealth, to answer to the demands and pressure of their citizens. But such a fundamental reform has other benefits, which I will return to shortly.
First let me confront the argument that a more transparent electoral system and more of the same democracy are the cure that a fractured nation needs.
Transparent elections will curtail the degree of corruption, willful incompetence, dereliction of governance, and other acts of impunity that have proliferated as part of our repertoire of crises. If our electoral system became more transparent and rigging became difficult, political officeholders would cut down on their stealing, or at least become more discreet in their corruption. They would do this in the knowledge that, with rigging no longer possible, they would not be returned to office if they elected to loot brazenly instead of governing or at least pretending to govern responsibly. But this is where the benefit ends and the limit of the good-elections-as-cure argument begins to manifest. The argument assumes that every officeholder would want to be reelected and that none would be content with a one-term looting spree. It assumes the best of human nature and the possibility of a mechanical moral reflex in those who govern. It is a naïve assumption anywhere, let alone in Nigeria, where the very object of public office in 99 percent of cases is a desire to profit from it. It is more prudent to assume the worst and preempt it.
What if candidate Okorie Olufemi Kangiwa wins an election to the position of president, gets access, under our current unitary system of almost unlimited executive power, to the treasury, and decides that reelection does not matter to him and that he would instead help himself to a lifetime of loot at the public's expense? What happens then? How does a good electoral system solve that? Voters can terminate his political life with their votes at the next election, but what's the guarantee that the next guy would not take a cue from his predecessor? Let's stretch the scenario even further. Disgusted with the thieving, incompetent president, the electorate throws him out of office and votes in another candidate who promises to be different. The candidate gets to office and decides that, in the order of priority, filling his pockets and those of his allies at the expense of responsible statecraft and development is higher than getting reelected. What is the recourse then, other than the routine, repetitive, but substantively meaningless exercise of the power to vote out erring officeholders?
The counterargument is of course that there is no guarantee in anything and that even in advanced democracies voters sometimes get it wrong in successive elections. That is true. The big difference is that, by virtue of the real checks on the power of executive officeholders, the strength of their institutions, and the devolution of power, resources, and initiative to constituent units, these countries can afford to get it wrong multiple times. Unlike Nigeria, they can ride out successive electoral mistakes. Excessive presidential turnover as a result of incompetence will not hurt them because their countries have the foundational mettle to thrive in spite of their presidents' or governors' ineptitude. Nigeria is in such dire straits that the state cannot endure or survive several incompetent, corrupt, one-term presidencies. Not when the fiscal foundation of the union is built on a finite, exhaustible resource: oil. Not when the country and its infrastructures are already comatose and need to be radically rebuilt for a new beginning. Five successive or intermittent one-term looting sprees can obliterate what is left of the country. And this would entirely be possible even under the most transparent electoral system and in the absence of fundamental structural reform that would compel, and not simply trust, officeholders to be transparent and accountable superintendents of the people's resources.
One often hears the clichéd argument that the answer to a dysfunctional democracy is more democracy. But what if, as in Nigeria, democracy, or more appropriately, the version of it that is practiced, has itself become part of the problem rather than the solution? The argument that there is no problem that democracy or more democracy cannot solve assumes that democracy is inherently good, is independent of its practitioners' intentions, and cannot be perverted, and that democracy can thrive in a failed state structure designed willfully or otherwise to perpetuate precisely the vices that democracy purports to cure: corruption, incompetence, nepotism, mediocrity, and strife. The argument also, of course, rests on an ambiguous, ill-defined, and monolithic concept of democracy. Practicing democracy in a matrix of structural and constitutional arrangements that by their very nature encourage waste, corruption, electoral desperation, and misgovernance produces a plethora of democratic evils. In such a system, democracy itself helps in perpetuating and supplying legitimacy to acts of national destruction.
Let me explain. Today, the biggest threat to Nigeria is corruption, which is traceable, as I have argued, to the dominance of the Abuja resource-sharing rendezvous and its many nodes at the state level. We assume that corruption refers to acts of financial appropriation that occur outside of the law, outside of the realms of legitimacy. But in today's "democratic" Nigeria, the threat of what one may call "legitimate" corruption is perhaps greater than that of embezzlement, theft, and other obvious "illegal" acts deemed corruption. Under this democracy, embezzlements and other kinds of graft can be executed legitimately—can be legitimized—by simply packaging them as bills of the national or state assembly, bribing or blackmailing legislative allies to pass them into law, and then pocketing or misapplying the resulting financial appropriation. As long as it is given the force of law by being passed by one of our legislative bodies, it becomes legitimate. It becomes recorded in fact as a democratic and legislative act, an integral, legitimate ritual of Nigeria's democratic system.
Legitimized corruption!
Democracy has now provided a larcenous political class with the perfect constitutional platform for corruption. That is not the fault of democracy per se. It is the result primarily of the absence of conditions that enable democracy in whatever form to thrive and self-correct—equity, justice, citizen vigilance and fiscal investment, and structural and constitutional safeguards against the abuse of office, top-down resource appropriation, and corruption. This foundational absence makes mockery of the rhetoric and practice of democracy.
So, when I am told that democracy is a cure-all and that Nigeria needs to simply improve its democracy, my retort is that democracy can work only when enabling conditions exist, conditions that remove the mortal threats that may in fact torpedo democracy itself, rendering it a source of harm to the body politic. If this is what democracy looks like, how do we need more of it to cure our ills? What democratic system, no matter how well crafted, can survive the temptations and perverse liberties of the Abuja resource-sharing market? Unless we reform our constitution to give citizens a fiscal stake in the government and return all struggles over resources to the local level, this democracy will, instead of saving Nigerians, kill them. And this is not hyperbole. This democracy has expanded and legitimized Nigeria's stealing field, and its expensive procedural rituals are now threatening to bankrupt the country to boot.
Another argument is the "good leader" proposition. Its bare essential is that the trouble with Nigeria, to parse novelist Chinua Achebe, is not with its structure and institutions but with its leadership. Achebe's forceful argument bemoaning the dearth of good leadership and his ranking of leadership deficit ahead of structural and constitutional defects in the hierarchy of causality has lent glamour to this proposition, making it an often repeated but little scrutinized mantra. It does not hurt that Achebe has also been a conscience of the nation, a sage, and a committed patriot. His persona has fed into the seemingly inscrutable sacredness of the leadership argument.
It is repeated in every forum of Nigerian discourse that a good leader or a succession of good, committed leaders, would reverse the rot and set Nigeria on the path of progress. The problem with this argument, aside from its reductionism, is that it assumes that the good leader or leaders with a cleansing mission would emerge outside the system of political patronage that is lubricated by Abuja-dispensed resources—a system sustained by entrenched interests that have no incentive to subscribe to a program of national reclamation and have every reason to support the opposite proposition. Perhaps the leadership argument was valid three or four decades ago, when the patronage system had not coalesced and when oil and its revenues had not taken such a central place in Nigeria's political system. In today's Nigeria, a lone messianic leader would have a hard time emerging even in a fair, transparent electoral contest. And if he did, he would have a hard time governing according to his conscience since he would have come to power on the back of interests and power brokers that are invested in the status quo and would seek to reap from their investment instead of overturning the current system. More crucially, such a lone messianic figure would be hamstrung by existing constitutional and legal norms, which legitimize acts that will continue to hobble the nation while stifling people who could liberate it.
A few examples are in order here. How will a messianic president prevent our national and state legislators from awarding themselves unconscionable perks of office that would dig holes in our national budget and scuttle social programs? How would he prevent them from using such perks as a bargaining chip or blackmailing leverage against him? Under our current democratic and constitutional norms, the messianic president will, willy-nilly, give in to many acts of legitimate corruption being perpetrated by legislators and their executive branch allies. Another example: how will this president prevent his supporters, aides, and those who funded his political ascent from reaping the spoils of office when he may be the lone man of ethics in a government populated by thousands of rapacious supporters and cheerleaders baying for loot?
In yet another example, how does this president prevent the legitimized, constitutionally mandated high theft of revenues under the guise of security vote? If he uses his discretion at the national level to redirect "his" security vote to other programs, can he do the same in all 36 states without overstepping the constitutional boundaries of his power? How does he prevent state assemblies from approving vulgar perks for themselves and the executive branches of their states? Under a fatally defective constitutional structure, the messianic president will be a messiah only in his head, his messianism isolated and rendered abstract. At best, he will quietly enjoy the aura and prestige of office while constitutional and unconstitutional looting goes on around him (Shehu Shagari, anyone?). At worst, he will, with time, join the looting and give up on his futile cleansing mission. That's the depressing pass at which Nigeria has arrived. The "good leader" thesis makes an emotional appeal to our sense of hope, to our thirst for miraculous and charismatic transformation. But one does not have to invoke Max Weber to understand the limit of charisma and personal character in a context of collapse. Personal charisma, character, and commitment make a discernible difference only when the structural and constitutional ingredients are in place.
To be sure, constitutional and structural reform will not magically cure all of the nation's ills. The depth of our predicament forecloses that. But it will solve several of the familiar problems and begin the process of healing. Constitutional reform that begins from the existential questions of a troubled union will return Nigeria to a truly federal structure where control over the bulk of resource revenue, developmental initiative, accountability, and policymaking will reside with the regions or states, not with a bloated and overbearing federal government. Under this reform scenario a small pool of revenue will flow to Abuja to fund a diminished federal government. The exact formula for this process needs to be agreed upon. It seems to me that a 50:50 formula (with 50 percent of revenue going to derivation zones and the other 50 percent being shared between the federal government and the other states) is a good starting point, from where a movement toward 60:40 or 70:30 ratio in favor of derivation areas can begin. There will be several advantages to this:
1. Admittedly, this may preserve and even exacerbate corruption at the state level in the short term. In the long run, however, it will produce grassroots interest and vigilance regarding the financial and political affairs of states and local governments. The principle is simple and commonsensical: the closer an institution is to the people it is designed to serve, the more stake people develop in it. The bigger the stake—political, economic, and emotional—the sharper the vigilance of citizens and the more determined they will be to ensure that elected representatives and leaders are transparent stewards of public resources and trust.
2. For oil-producing states/regions the effect will be dramatic in terms of both revenue pool and the transformation of political dynamics. In the short term, contests for political office in those regions will escalate, as politicians will (re)position themselves to secure supervisory access to the larger resource pool that will become available. Indeed, politicians from these regions will most certainly begin an epic migration from Abuja to participate in what they anticipate will be a regional oil-dollar feast. Beneath all of this chaos, however, a quiet political dynamic will gradually take hold, as the citizens of these regions realize that their politicians can no longer rely on power and coercive instruments mobilized from Abuja to protect themselves against their agitation or to put down clamor for accountability and responsible governance. A new sense of political empowerment and a new awareness of stakeholding will develop among the citizens of these states. Over time, this will crystallize into a formidable civil society that will insist on both fiscal and electoral accountability. Their ethnic and physical proximity to the politicians will intensify this citizen power, ensuring that politicians make themselves accountable to their constituents instead of using Abuja as a shield, alibi, and foil to deflect local clamor for good governance and transparency, as is currently the case. Politicians from the Niger Delta who will flock "home" from Abuja in the hope of constituting themselves into a new, Abuja-type oligarchy will, over time and as their constituents exercise their new voice, find their operational liberties curtailed and their immunity and impunities challenged. This will be a seminal shift in the struggle for accountable governance and electoral integrity in the oil-producing states. These states will be much better for it.
3. For non-oil-producing states, the benefits may be counterintuitive, but they are many. States without oil will be compelled to shop for revenue outside the assured purview of the federal allocation formula, which is guaranteed, for now, on a perennial oil revenue bonanza. New revenues do not come easy. Necessity will force these governments to explore previously neglected sources of extractive revenue. Taxes and levies will also have to be imposed on economically challenged citizens, a move that will result in both hard sacrifice and a sense of investment and involvement. This sense of participatory involvement will prove crucial. The citizens, by virtue of funding the government from their toil, will develop instant proprietary interest in the management of government finances, ensuring through their vigilance that those they elect to run the government put their tax money to good, prudent use. Again, the geographic and cultural proximity of the electorate's anger, the prospect of its eruption, and the new reality that local politicians can no longer call upon Abuja for political protection or use Abuja as an alibi for poor performance will ensure an appreciable degree of accountability from public officeholders.
4. All of these should, over time, produce a culture of public vigilance, accountability, transparency, and healthy competition between states and regions.
5. True federalism will help construct the basis for an enduring union. At a time when the nation stands challenged on many fronts by movements that reject the social, political, and economic tyranny of the Nigerian state, the lazy, repetitively hollow assertion that the unity of Nigeria is nonnegotiable will no longer do. The problem we have in Nigeria is that we assume that nations are incubators of sameness and so we frown upon any expression of difference and desire for autonomous identity platforms. Nations are not harvesters of homogeneity. They are efficient managers of difference. Often they are patchworks of different groups and different primordial and aspirational interests that agree to pursue some common goals while retaining their values, differences, and cherished autonomies. In Nigeria we are afraid to broach the question of difference, primordial or otherwise, let alone confront it in an open national conversation. Yet the signs are there—and festering—that differences, real differences, exist in the values, aspirations, priorities, and worldviews of the different regions and ethno-religious clusters in the country.
Matters Arising
The Marxist and neo-Marxist claptrap that everyone is motivated by the same existential economic needs and that identity issues are felt by the masses only when manipulated by elite calculations is no longer tenable and has become part of the problem. It is deceptive and escapist, and stands disproved on many fronts. Most committed Marxists no longer believe in the exclusive primacy of economic or materialist motivation and now subscribe to a more holistic index of impulses and needs. Those who still believe that foundational Marxist mantra do so as a matter of doctrinal correctness, not of philosophical logic or empirical compulsion. In Nigeria, identity questions and desires have become as important as economic ones. They are real and heartfelt, and are part of our slate of unresolved issues. We should not bury them behind empty, pretentious slogans.
Take the Caliphate and Bornuan North (the Northwest and huge swathes of the Northeast). The Boko Haram Islamist insurgency, which was birthed in that part of the country, threatens the fabric of the nation. The movement obviously does not enjoy widespread support in this zone. The same cannot, however, be said of Sharia, which posed an existential challenge to Nigeria in the 2000s, when its constitutionality was debated and when Muslims and Christians clashed over its implementation. When Sharia fever gripped this zone in 2000, there were diverse views as to what catalyzed the grassroots clamor for Sharia as a legal, social, and political order. Some attributed it to bad governance and an attendant desire for a utopian religious alternative. Others pointed to the manipulation of politicians who saw in Sharia a means to easy political legitimacy and immunity. Yet others insisted that this was not a clamor produced by politics or ephemeral discontent with poor governance but a genuine religious awakening at the grass roots, a populist reformist eruption in the tradition of the Fulani Islamic reform movement of the early nineteenth century.
Today, more than a decade later, Sharia remains an unsettled question. We have not determined its constitutionality. Nor have we answered the question of whether it is a fleeting, emotive desire or a deeper matter of identity and values that needs to be addressed explicitly in the constitution to douse the dueling contentions on its constitutionality and its supposed threat to Nigeria. But how can we come to this resolution outside a serious discussion of regional, ethnic, and religious values and differences? How can we construct constitutional protections for those desirous of certain religious or social reforms and comforts and those fearful of those changes? In fact, how can we even determine whether Sharia is indeed the overarching political template preferred by the population of the Caliphate North if we are not willing to discuss and resolve the constellation of national questions that we are constantly reminded of during moments of national crisis?
For other regions and clusters, the touchstone of subnational aspiration may not be Sharia but a preoccupation with the autonomy to do things in other spheres without the intruding override of an overbearing federal government. In the Southwest, the desire for a state-controlled police force is strong, eliciting diverse views on its constitutionality. Given the strong sentiment in its favor in several Southern states, should Nigerians not have a serious discussion on it? What about the recurring decimal of citizenship—the question of whether the rights of indigenes should flow from residency or origin? Given its deadly centrality to many ethnic and ethno-religious conflicts in different parts of the country, does it not deserve a serious constitutional conversation that will settle it once and for all?
Conclusion
In the past those who advocated this path of true federalism couched it in the angry idiom of a nation saddled with incompatible differences. They expressed it in the vocabulary of blame. They posited that a section of the country is a leech and a drag on the rest, that it deserves expulsion, and that the other "productive" section deserves freedom from the burden of subsidizing its lazy appendage. That was and is still a counterproductive tactic of sparking structural political reform. Instead of advancing mutual gain and healthy, developmental competition as the basis for their advocacy of pristine federalism, many federalists spoke about parasites that needed to be banished or punished. That is why the idea of a serious, people-driven, everything-is-on-the-table constitutional conference never gained traction and spooked politicians and regular citizens alike. The best case for reforming and rewriting Nigeria's unitary constitution is the logic of compatible differences—the conviction that Nigeria may be a bewildering congregation of different peoples, interests, aspirations, values, beliefs, and priorities, but that the differences are compatible and can/should be preserved through a pragmatic process of reimagining and reconstructing the very foundations of the nation. Nigeria will live or die by how Nigerians treat this foundational imperative.
There is enough in the world for everyone's need but not for everyone's greed.
---Mohandas Gandhi
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