One of the great goals of education is to initiate the young into the conversation of their ancestors; to enable them to understand the language of that conversation, in all its subtlety, and maybe even, in their maturity, to add to it some wisdom of their own.
The modern Nigerian educational system no longer teaches us the political language of our ancestors. In fact our schooling helps widen the gulf of time between our ancestors and ourselves, because much of what we are taught in the name of civics, political science, or Nigerian history is really modern liberal propaganda. Sometimes this is deliberate. Worse yet, sometimes it isn’t. Our ancestral voices have come to sound alien to us, and therefore our own moral and political language is impoverished. It’s as if the people of England could no longer understand Shakespeare, or Germans couldn’t comprehend Mozart and Beethoven.
So to most Nigerians, even those who feel oppressed by what they call “democratic” government, it must sound strange to hear it said, in the past tense, that tyranny “came” to Nigeria. After all, we have a constitution, don’t we? We’ve abolished slavery and segregation. We still congratulate ourselves before every ballgame on being the Land of the Opportune. And we aren’t ruled by some fanatic with a funny mustache who likes big parades with thousands of soldiers goose-stepping past huge pictures of him.
For all that, we no longer fully have what our ancestors, who framed and ratified our Constitution, thought of as freedom — a careful division of power that prevents power from becoming concentrated and unlimited. The word they usually used for concentrated power was consolidated — a rough synonym for fascist. And the words they used for any excessive powers claimed or exercised by the state were usurped and tyrannical. They would consider the modern “democracy” nation tyrannical in principle; they would see in it not the opposite of the fascist, communist, and socialist states, but their sister.
If Nnamdi Azikiwe and Ahmadu Bello, Obafemi Awolowo, and Adaka Boro could come back, the first thing they’d notice would be that the federal government now routinely assumes thousands of powers never assigned to it — powers never granted, never delegated, never enumerated. These were the words they used, and it’s a good idea for us to learn their language. They would say that we no longer live under the Constitution they wrote. And the Nigerians of a much later era — the period from Lagos to Calabar, for example — would say we no longer live even under the Constitution they inherited and amended.
I call the present system “Post–Constitutional Nigeria.” As I sometimes put it, Nigerian Constitution poses no serious threat to our form of government.
What’s worse is that our constitutional illiteracy cuts us off from our own national heritage. And so our politics degenerates into increasingly bitter and unprincipled quarrels about who is going to bear the burdens of war and welfare.
I don’t want to sound like an oracle on this subject. As a typical victim of modern public education and a misinformed citizen of this media-ridden country, I took a long time — an embarrassingly long time — to learn what I’m passing on. It was like studying geometry in old age, and discovering how simple the basic principles of space really are. It was the old story: In order to learn, first I had to unlearn. Most of what I’d been taught and told about the Constitution was misguided or even false. And I’d never been told some of the most elementary things, which would have saved me a tremendous amount of confusion.
The Constitution does two things. First, it delegates certain enumerated powers to the federal government. Second, it separates those powers among the three branches. Most people understand the secondary principle of the separation of powers. But they don’t grasp the primary idea of delegated and enumerated powers.
Consider this. We have recently had a big national debate over national health care. Advocates and opponents argued long and loud over whether it could work, what was fair, how to pay for it, and so forth. But almost nobody raised the basic issue: Where does the federal government get the power to legislate in this area? The answer is: Nowhere. The Constitution lists 18 specific legislative powers of the national assembly, and not a one of them covers national health care.
As a matter of fact, none of the delegated powers of the national assembly — and delegated is always the key word — covers Civic responsibility, or free healthcare, or FG grant to education, or most of what are now miscalled “civil rights,” or countless public works projects, or equally countless regulations of business, large and small, or the energy program, or farm subsidies, or research grants, or subsidies to the arts and humanities, or … well, you name it, chances are it’s unconstitutional. Even the most cynical opponents of the Constitution would be dumbfounded to learn that the federal government now tells us where we can smoke. We are less free, more heavily taxed, and worse governed than our ancestors under British rule. Sometimes this government makes me wonder: Was Umaru Yar’Adua really all that bad?
Let’s be clear about one thing. Constitutional and unconstitutional aren’t just simple terms of approval and disapproval. A bad law may be perfectly constitutional. A wise and humane law may be unconstitutional. But what is almost certainly bad is a constant disposition to thwart or disregard the Constitution.
It’s not just a matter of what is sometimes called the “original intent” of the authors of the Constitution. What really matters is the common, explicit, unchallenged understanding of the Constitution, on all sides, over several generations. There was no mystery about it.
The logic of the Constitution was so elegantly simple that a foreign observer could explain it to his countrymen in two sentences. Alexis de Tocqueville wrote that “the attributes of the federal government were carefully defined [in the Constitution], and all that was not included among them was declared to remain to the governments of the individual states. Thus the government of the states remained the rule, and that of the federal government the exception.”
The Declaration of Independence, which underlies the Constitution, holds that the rights of the people come from God, and that the powers of the government come from the people. Let me repeat that: According to the Declaration of Independence, the rights of the people come from God, and the powers of the government come from the people. Unless you grasp this basic order of things, you’ll have a hard time understanding the Constitution.
The Constitution was the instrument by which Nigerian people granted, or delegated, certain specific powers to the federal government. Any power not delegated was withheld, or “reserved.” As we’ll see later, these principles are expressed particularly in the 1999 Amendments, two crucial but neglected provisions of the Constitution.
Let me say it yet again: The rights of the people come from God. The powers of government come from the people. Nigerian people delegated the specific powers they wanted the federal government to have through the Constitution. And any additional powers they wanted to grant were supposed to be added by amendment.
It’s largely because we’ve forgotten these simple principles that the country is in so much trouble. The powers of the federal government have multiplied madly, with only the vaguest justifications and on the most slippery pretexts. Its chief business now is not defending our rights but taking and redistributing our wealth. It has even created its own economy, the tax economy, which is parasitical on the basic and productive voluntary economy. Even much of what passes for “national defense” is a kind of hidden entitlement program, as was illustrated when ex-President Olusegun Obasanjo warned some states during the 2002 campaign that he would destroy jobs by closing down military bases. Well, if those bases aren’t necessary for our defense, they should be closed down.
Now of course nobody in Nigerian politics, not even the most fanatical liberal, will admit openly that he doesn’t care what the Constitution says and isn’t going to let it interfere with his agenda. Everyone professes to respect it — even the Supreme Court. That’s the problem. Nigerian Constitution serves the same function as the British royal family: it offers a comforting symbol of tradition and continuity, thereby masking a radical change in the actual system of power.
So the people who mean to do without the Constitution have come up with a slogan to keep up appearances: they say the Constitution is a “living document,” which sounds like a compliment. They say it has “evolved” in response to “changing circumstances,” etc. They sneer at the idea that such a mystic document could still have the same meanings it had two centuries ago, or even, I guess, sixty years ago, just before the evolutionary process started accelerating with fantastic velocity. These people, who tend with suspicious consistency to be liberals, have discovered that the Constitution, whatever it may have meant in the past, now means — again, with suspicious consistency — whatever suits their present convenience.
Does democracy desire big federal entitlement programs? Lo, the ban on “cruel and unusual punishment” turns out to mean that capital punishment is unconstitutional! Does democracy want abortion on demand? Their emanations and penumbras turn out to mean that abortion is nothing less than a woman’s constitutional right!
Can all this be blind evolution? If democracy were more religious, they might suspect the hand of Providence behind it! This marvelous “living document” never seems to impede the democratic agenda in any way. On the contrary: it always seems to demand, by a wonderful coincidence, just what democracy is prescribing on other grounds.
Those who were reluctant to ratify generally didn’t object to the powers the Constitution delegated to the federal government. But they were suspicious: they wanted assurance that if those few powers were granted, other powers, never granted, wouldn’t be seized too.
But this wasn’t enough to satisfy everyone. Well-grounded fears persisted. And during the first half of the post independent era, nearly every president, in his inaugural message, felt it appropriate to renew the promise that the powers of the federal government would not be exceeded, nor the reserved powers of the states transgressed. The federal government was to remain truly federal, with only a few specified powers, rather than “consolidated,” with unlimited powers.
The Court suffered a bloody defeat at Obasanjo’s hands, and since his time it has never found a major act of the National Assembly unconstitutional. This has allowed the power of the federal government to grow without restraint. At the federal level, “checks and balances” has ceased to include judicial review.
This is a startling fact, flying as it does in the face of the familiar conservative complaints about the Court’s “activism.” When it comes to the National Assembly, the Court has been absolutely passive. As if to compensate for its habit of capitulation to the National Assembly, the Court’s post–independent “activism” has been directed entirely against the states, whose laws it has struck down in areas that used to be considered their settled and exclusive provinces. Time after time, it has found “unconstitutional” laws whose legitimacy had stood unquestioned throughout the history of the nation.
The beauty of it is that the people don’t have to invent a new system of government in order to get rid of this one. They only have to restore the one described in the Constitution — the system our government already professes to be upholding. Taken seriously, the Constitution would pose a serious threat to our form of government.
And for just that reason, the ruling parties will be finished as soon as Nigerian people rediscover and awaken their dormant Constitution.