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Lawful Procedures for Actualising People’s Constitution

Date:

By Mike Ozekhome

The Constitution is the birth certificate and identity card of a Nation. It mirrors the values and aspirations of a people.

Such a supreme document is not a mere law or legislation that is crafted by the National Assembly, NASS.  Neither the NASS nor the government can give the Nigerian nation a constitution. Rather, it is the Constitution that gives the Nation a government, because it is based on the will of the people. It is the dog that wags the tail; the tail does not wag the dog.

In the halls of the Green Chamber, sixty legislators, transcending party lines have only recently advocated for a transition from a presidential to a parliamentary system of government. Simultaneously, the Senate also convened a 43-member panel on Constitution review. These steps to me should be used as an auspicious moment to consider how best to fashion out a truly representative people’s Constitution.

The never-ending call for a new Constitution arises from a recognition of the inherent fundamental shortcomings of the present unitary and lop-sided system, which is anything but federalist. Mere amendments to or replacements of the Constitution under sections 8 and 9 therefore, would be akin to merely applying a superficial remedy to a deep-rooted ailment. It simply cannot and will not work. I humbly submit, as I have done since the year 2000, that one million amendments multiplied by another million amendments, with the addition of yet another million amendments, will never work. Merely chopping off the branches of a tree without cutting off the taproot will never kill such a tree.

It is akin to merely treating the symptoms of a serious disease. Just as one cannot cure cancer with medication meant for minor skin conditions, the need for a new beginning is dire. This is because the process and procedure for crafting a new Constitution must be democratic and all inclusive, as they are more important than the contents of the Constitution themselves. The simple reason is that it is such procedure or process that confers legitimacy, credibility and acceptability on the supreme document called Constitution.

Why 1999 Constitution is illegitimate

The fact that a dictatorial and autocratic military junta imposed the 1999 Constitution completely robs it of its legitimacy, credibility and acceptability, as it does not represent the nation’s Identity Card, covenant and the supreme will of the Nigerian people, which are what a Constitution highlights. Though a Constitution may be initiated through or amended by parliament, the final and decisive act of promulgation is strictly reserved for the people through a referendum. It is this act that confers autochthony, ownership, legitimacy and credibility on the document called a Constitution.

The 1999 Unitary Constitution of Nigeria lacks all these attributes. It is a schedule attached to the Decree No. 24 of 1999. The 1999 elections were held without a Constitution. The Constitution therefore tells a lie in its preamble by proclaiming its existence with “We the people of Nigeria”. The Nigerian people never gave us such a Constitution through a referendum.

Procedures for bringing about a people’s constitution

Procedure through Late Prof Ben Nwabueze’s thesis

In a seminar writeup titled “Legal Authority for the convening and holding of a National Conference and for the making of a people’s Constitution,” late Professor Ben Nwabueze, SAN, NNOM, widely regarded as Africa’s pre-eminent and foremost constitutional lawyer, delved into the mechanisms for bringing about a people’s Constitution through the National Assembly. He asserts that the National Assembly’s power to enact legislation for convening and conducting a National Conference is rooted in its authority to “alter” the Constitution as conferred by sections 8 and 9.

Professor Nwabueze contends that while the power to “alter” does not inherently imply the power to replace, the National Assembly’s authority extends beyond alteration vide sections 8 and 9. He highlights the enactment of the 1999 Constitution via Decree 24 and advocates a repeal of section 1(1) this Decree as a means of abolishing the existing Constitution and simultaneously instituting a new one. He drew parallels to the 1963 method in the making of the 1963 Republican Constitution to replace the 1960 Independence Constitution which was established in section 2 of a Schedule to the British Government’s Order-In-Council.

Furthermore, he argued that the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999, qualifies as an “existing law” within the meaning of section 315(4) of the 1999 Constitution, thereby subject to repeal by the National Assembly. Professor Nwabueze maintained that such legislative actions are within the purview of the Legislature, ensuring coherence and conformity with constitutional principles.

In essence, Professor Nwabueze’s discourse underscores the National Assembly’s dual capacity as both a federal legislative body and the supreme legislative authority for the Federal Republic of Nigeria, affirming its prerogative to effect constitutional changes in alignment with democratic principles.

Issues with Nwabueze’s brilliant thesis

Late Prof Nwabueze’s thesis is a beautiful and attractive intellectual piece of discourse, resonating in its breadth and depth. However, it still fails to answer the critical question: does the mere yanking off of Decree 24 which promulgated the Constitution, and simultaneous replacement of the 1999 Constitution through repealment of section 1(1) of Decree 24 amounts to the enactment of a brand-new Constitution to replace the present 1999 Constitution? Does it cure it of its “original sin” of lack of autochthony? Does it amount to making it the people’s Constitution when same is replete with fallacies and inconsistencies, having been militarily imposed by a little clique of military dictators as a mere schedule attached to Decree No 24 of 1999? Did this tiny clique represent “We the People of Nigeria” as the preamble to the 1999 Constitution falsely states? I think not. Can an illness be cured by attacking the symptoms? This is where the issue of a referendum comes in.

Procedure through 2014 Conference report

To have an autochthonous Constitution that derives its legitimacy from the Nigerian people, we may need to look at the 2014 National Conference, (where I was a member and headed the subcommittee on Constitution drafting, human rights and legal reforms). The Committee made appropriate recommendations regarding bringing about a people’s Constitution. The said over 600 recommendations were subjected to the plenary session, hotly debated and consensually agreed upon and adopted. It was agreed that there was the need to have a totally brand new Constitution for the people of Nigeria. The 492 members that were at the National Conference represented all strata and walks of life of the Nigerian people – the Federal Government, States, LGAs, Labour; trade unions; physically challenged; youth; students; Civil Society; market men and women; professionals; technocrats; military; Police; civilians; traditional rulers; educationists; members of the diplomatic corps; private and public sectors; etc.

Some people have argued (and with some strong reasons too), that the 2014 National Conference was not representative of the people because the delegates were not elected. The simple answer is that aside the fact that the delegates were all thrown up by the entire Nigerian people – States, LGAs, Civil Society, Market men and women, professionals, the physically challenged, technocrats, youths, students, Labour and Trade Unions – the question of representation was a sore issue at the Conference. It was hotly debated. After many days of arguments, and counter-arguments, it was finally agreed by way of consensus that the 2014 National Conference delegates constituted the true and correct representatives of the Nigerian people. These delegates certainly constituted plurality of representatives of the Nigerian people more than the 28 members of General Abdusalami’s tiny military oligarchy that promulgated Decree 24 of 1999, to usher in the present 1999 Constitution.

However, the point must be made that the NASS having been voted into office by the Nigerian people without a Constitution (since the elections predated the 1999 Constitution), can promulgate a law that subjects these over 600 recommendations to a referendum of the people through an appropriate agency. I shall state how this can be done.

The 2014 National Conference surely passed for a Constituent Assembly also known as a Constitutional Convention, Constitutional Congress, or Constitutional Assembly. Members of such a Constituent Assembly may be elected by popular vote, drawn by sortition, appointed, or some combination of these methods, as was the case of the 2014 National Conference. Assemblies are typically considered distinct from a regular legislature. A Constitutional Convention or a Constituent Assembly, is usually set up for its specific purpose, which it carries out in a relatively short time, after which the Assembly is dissolved. A Constituent Assembly is a form of representative democracy. This was what happened in 2014 with the National Conference which was a Constituent Assembly of the Nigerian people.

Procedure through NASS

No one is saying the NASS will be ignored in the process of bringing about a new people’s Constitution through a referendum. It is the NASS that must pass an Act, relying on and using the provisions of sections 4,8,9,13 and 14 and 315 of the 1999 Constitution; and, Items 47, 67 and 68 of Part 1 to the Second Schedule of the Exclusive Legislative List. It can use these sections to make and amend laws for the peace, order and good government of the Federation.

Thus, the 2014 National Conference surely served such a Constituent Assembly of the Nigerian people. There is therefore no further need to dissipate energy, waste scarce resources and time to convoke yet another Delegates Conference or Constituent Assembly that will gulp billions of naira in this austere period. All we need to do at this stage is to aggregate the 2014 National Conference report with the condensed recommendations made by the Senate and House of Representative Committees on Constitutional amendment, and the salient provisions of the 1963 Republican Constitution and refer them to the NRC to activate a referendum of the Nigerian people.

This will enable it command the people’s respect, legitimacy, acceptability and credibility. The emergent product becomes a people’s Constitution. To carry out this exercise is not rocket science. It can be executed with the urgency of yesterday, through the appropriate processes of first, second and third reading in the respective Houses within few days of a bill to that effect. Thus, it is recommended that the NASS should take the following urgent steps to promulgate a New People’s Constitution for Nigerians:

Steps to be taken by NASS in midwifing a people’s constitution

Section 14(2) of the 1999 Constitution provides that sovereignty belongs to the Nigerian people (not the NASS). The present NASS was itself elected by the said Nigerian People even before the coming into being of the 1999 Constitution. Therefore, to abate their fear of being rendered irrelevant in the process of midwifing a new peoples Constitution, the NASS shall be deeply involved in facilitating the process of the emergence of a brand-new Constitution from its present constitutional review exercise. With its law-making function it can set up a National Referendum Commission, NRC, to drive and actualize the process of a new Constitution through a referendum of the Nigerian people emanating from the 2014 National Conference recommendations; present review by the NASS and desired provisions of the 1963 Republican Constitution. The version of the National Referendum Commission (NRC) was what Iraq termed Constitutional Referendum (2005); Constitutional Assembly by (South Africa, 1996); Constitutional Commission (Eritrea, 1994); Constitutional Convention (USA, 1776).

It is this NRC thus provided for by an Act of the NASS under sections 4, 8, 9 and 14 that will collate the recommendations of the present Constitutional Review Committees set up by the NASS; the 2014 National Conference lofty recommendations and some relevant provisions of the 1963 Republican Constitution. The entire process shall be driven by the National Referendum Commission already set up by an Act of the NASS.

This Act enacting the NRC shall also make provisions for a referendum of the people. What the NASS therefore does is to simply catalyse, aid and energise the entire process of the NRC’s collated final draft which the same NRC then subjects to a referendum of the Nigerian people. The referendum is predicated on the emergent draft as collated and propelled by the National Referendum Commission (NRC). The about 374 ethnic groups of Nigeria (Prof. Oniga Otite) will have opportunity through a referendum to speak to the proposed Constitution.

The collated draft version shall thus be voted on by Nigerians during a popular referendum in a manner already prescribed by the NASS, in the form of “AYES” or “NAYS”. The emergent Constitutional draft thus becomes the outcome of the will of the people.

With this, the new emergent draft of the Constitution becomes autochthonous, indigenous, legitimate, credible and owned by the people.

The NRC can, in its collated draft include the new clamour for re-introduction of the Parliamentary system of government as done in Bangladesh on 15th September, 1991. It is left for the Nigerian people to accept or reject this during the proposed referendum.

All these can be done within a space of a mere six months. The President then PROCLAIMS this document into a New Constitution, using his executive powers under section 5 of the Constitution.  With this, the new document (Constitution) can truly proclaim, “WE THE PEOPLE OF THE FEDERAL REPUBLIC OF NIGERIA…DO HEREBY MAKE AND GIVE TO OURSELVES the following Constitution”.

The NASS should therefore eschew its understandable fears of being ignored, side-lined, or marginalized in the emerging constitutional scenario. It is actually the main organ and engine room that drives the entire process of how a National Referendum Commission facilitates a referendum of the Nigerian people through its draft collated from the sources earlier highlighted.

Importance of a referendum

A referendum is popularly known as a system where the electorate body (voters or citizens of a country) through a ballot approve or reject an act of the legislature. This posits referendum as the practice of submitting to popular vote of the people passed on or proposed by a legislative body or by popular initiative. It is one of the truest ways of ensuring citizens take part in the decision-making process that shapes the future and fate of their country. A referendum is a general vote by the electorate usually taking the form of yes (Ayes) and no (nays) votes of the populace on a single political question which has been referred to them for a direct decision. This may result in the adoption of a new policy or specific law. A constitutional referendum is thus a form of referendum where a popular vote is cast for the adoption or amendment of a Constitution, by members of the electorate. A referendum enables the people to negotiate, agree, and express their desires, which may ultimately be different from that of the political ruling class.

Expected innovation in a new people’s constitution

Restructuring is meant to make the Nigeria project work better and give a sense of belonging to all persons in Nigeria. It is meant to overhaul the current polity by giving power back to the people through their elected; rework a new Constitution that truly reflects their aspirations; address the peculiar needs of the federating units; and, resolve and restore true fiscal federalism. It is meant to afford minority groups a sense of National Identity; afford them control over their natural resources; allow them establish their own Court systems, Police Forces and Community Policing Systems; give them maximum security; afford them a fair and effective political structure; and allow the people develop according to their desire and pace; while paying a fair tax to the central Government to enable it oversee limited areas of jurisdiction within the exclusive Legislative list. To achieve such restructuring of Nigeria, I hereby make the following humble recommendations:

We need a fresh people’s Constitution anchored on a six-zonal federal structure, with the present states, still retained as federating units, thus having a two-tier system of Government.

There shall be a central Federal Constitution, whose provisions shall prevail in the event of a conflict with the provisions of States and sub-regional Constitutions. Each State shall maintain its own Constitution, have its own Police Force, and its hierarchy of courts up to the Supreme Court.

Each sub-regional group (Geopolitical Zone) shall have a Supreme Court that entertains appeals from the Supreme Courts of States within the sub-Regions, as was with the Western Region Court of Appeal. Only serious matters of Constitutional importance between States and States, and between States and the Federal Government shall go to the Supreme Court of Nigeria in Abuja, in like manner of the US Supreme Court.

Abolish section 162(4) – (8) of the Constitution and allow each State to be free to merge existing LGCs or create fresh LGCs, depending on its needs and financial capability. Such LGCs shall be made autonomous and not dependent on State Governors.

Each of the federating states shall fully control its own resources up to 100% resources and pay 30% of revenue generated from these resources to the central government to enable it take care of its fewer allotted functions. In a proper federation, the central government does not own the resources and then allocate or dole out revenues to the sub-national units. It is the other way round. This was the position under the 1963 Republican Constitution, true fiscal federalism set up that allowed states to own their resources, pay tax to the central Government and develop according to their pace and needs. Let states begin to bake, and not merely share the National Cake.

Separate the office of the Attorney-General of the Federation from the highly political office of the Minister of Justice.

Separate the office of the Accountant-General of the Federation from that of the Accountant-General of the Federal Government. A participation by vulnerable groups in governance, and bring about gender equality through a clearly defined Affirmative action.

Abrogate one chamber of the NASS (360 House of Representatives members; 109 Senators are too much for Nigeria). Or, allow existing members to sit on part-time and get paid sitting allowances. Maintain Nigeria’s secularity and Governments must hand off religious matters and pilgrimages. Remove the immunity clause in prima facie criminal offences for the offices of President, Vice President, Governor and Deputy Governor while in office. This will stop their criminal proxy activities.

Bring about rotation of power between the North and the South. Make provision for independent candidature. Create specific Constitutional and Anti-Corruption courts.  Revamp the electoral process; Allow transparent counting of votes and allow the votes to count. Enable funding of members of the NASS by constituent States.  Create a specific constitutional role for traditional rulers and the traditional institution. They are the nearest units to the grassroots.

Reform the Judiciary by banning mere interlocutory appeals to the Supreme Court and demarcating clearly between pre- and post-election matters. Halt the process of courts conceiving, incubating and delivering Presidents, Governors, Legislators, Chairmen of LGCs and Councilors. Remove the artificial discrimination inherent citizenship, indigeneship and residency.

Provide for clearly defined timelines for initiating assenting to and passing bills by all Legislatures in Nigeria. Whittle down the entire bureaucracy in all the three arms of Government in Nigeria.

Make justiciable and actionable in a court of law, the entire provisions of Chapter II of the Constitution deal with socio-economic rights. Constitutionalize electoral Reforms and punish electoral offences, including banning for 10 years, politicians that are involved in, or who instigate electoral crimes.

Prune down the Exclusive Legislative list of the Federal to few matters concerning Aviation Policy and Regulations; Banking, Bills of Exchange and Promissory Notes; Citizenship, Naturalization and Aliens; Creation of States; Currency, Coinage and Legal Tender; Customs Duties; Foreign and External Affairs; Defence and Defence Matters; Immigration into and Emigration Matters; Nuclear Energy; Ownership of and Control over Educational Matters that border on Federal Tertiary and Research Institutions.

Way forward

Finally, evolving development around the globe points clearly to the fact that promotion, respect and preservation of tenets of the rule of law are not only desirable, but are mandatory requirements to ensure a peaceful and civil human society. Executive lawlessness or rascality shall be prohibited by the Constitution. It is very important that the powers of every arm of government to act against the citizen is not stimulated by whims and caprices of the controller of such powers, but only to the extent authorized by the Constitution. The right of every man and woman to have his inalienable rights respected and removed from privations under any guise is God-given and must be taken as such. It is now a compelling necessity that both the governor and the governed must be subjected to the rule of law.7 The rule of law must therefore be protected by the Constitution. The government should also abide by the law and act within its confines to ensure peace, stability and welfare of the general public.

Democracy must also be rooted in the Constitution. The people should be given a clear voice and mandate to manage the affairs of the nation, through appropriate measures of free and fair elections, and checks and balances. The people should be given the rights of access to information, participation in decision making process and access to justice. Democracy needs to take significance over politics in Nigeria, and oust the current practice of election malpractices which prevent free and fair elections. Democracy and Rule of Law need to be revived once again in Nigeria, and that cannot be done merely by amending the present Constitution. Rather, the present Constitution must be discarded with, and a fresh new Constitution created through a referendum of the people as midwife by the NRC enacted into law by the NASS.

One cannot amend a bad document; it is simply not possible. An illegitimate document remains illegitimate forever. The present Nigerian Constitution is a child of bastardy and nothing can cure it. Even one million amendments multiplied by another million amendments can never cure the present Constitution of Nigeria of its original sin of its illegitimacy. Albert Einstein once said that “it is only a mad man that seeks to get different results by using the same methods that he has been using when a problem commenced”. The Constitution has already undergone several amendments; yet, it is still bad. The problems of hunger, insecurity, corruption, mutual distrust, religious intolerance, favouritism, ethnicity, sectionalism, prebendalism, et al, mount by the day.

The beauty of democracy is the primacy of the wishes of the people and the mutability of the instrument that binds the people and the government.

The will of people is Supreme

The people have a say as to how they want to be governed; this is the whole purpose of democracy. The donor of the power remains the people. A tail cannot wag the dog; it is the dog that wags the tail. Therefore, the government should learn to subscribe to the will of the people, not the people subscribing to the will of the government.

Hippocrates, the father of medicine, once postulated that desperate diseases require desperate remedies. Nigeria now finds herself in a desperate quagmire and hence, desperate solutions are required. The only price we have to pay for our liberty is eternal vigilance, says Learned Hand. Therefore, I urge Nigerians to stand up to their rights and demand for a fresh new Constitution that emanates from the people themselves. The will of the people is supreme (salus populi suprema lex). Nothing less.

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