By Mbang Confidence, Esq.
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INTRODUCTION
The National Assembly have once again called for memorandums to amend the Constitution of the Federal of Nigeria, 1999, as altered. The call for constitutional amendment is becoming an unpleasant culture by the legislature. After Nigeria gained her independence on the 1st of October, 1960, she survived so many military interregnums, and on 29th of May, 1999, constitutional democracy was restored as the new model of governance. However, since then, that sacred document has not received due accolades, rather it has suffered rash criticisms for not being people’s- centric, people’s oriented and people’s driven. This is not unconnected with the procedure and validity of the document, same being a product of not more than 28 members of the Provisional Ruling Council of the Abdulsalam Abubakar – led military government. The constitution has been criticized for its myopic tendencies, and failure to address futuristic occurrences, it has been criticized for its colonial heritage and military sting. In other words, it’s validity and legitimacy is still debatable. It has also been contended that the phrase, “we the people…” in the preamble of the 1999 Constitution is just ink on white paper, as same does not represent its historical antecedence. In the face of this enigma, lawmakers have continued to influence its amendments to the obvious detriment of addressing germane issues of national concerns. This article submits that there is no need for the National Assembly to call for memorandums for constitutional amendments, rather, law makers should kowtow the decision of the National Constitutional Dialogue organized by the Patriots, in honour of late legal sage, Professor Ben Nwabueze, SAN, and also to mark the 10th anniversary of the convocation of the 2014 National Conference. The constitutional dialogue was made up of men of timber and caliber, men of obeche – men that have seen it all. Nigeria is due for a new people’s driven constitution.
CONSTITUTIONAL VALIDITY AND LEGITIMACY: MATTERS ARISING
Issues surrounding the historical antecedents of the making of the constitution has raised questions as to its validity and legitimacy. While some pundits are of the view that the constitution is simply a colonial document, others dislodge it for it high military flavor. Therefore, the question once asked by Chief Bola Ige, SAN and former Attorney General of the Federation is quite germane at this juncture. The legal sage asked; “it has been our lot as a nation to have at various times, thrust upon us, Constitutions promulgated by the fist or military junta’s. Does this remove the yoga of legality from such Constitutions?. To what extent can a Constitution enacted by undemocratic forces be a valid framework for regulating democratic governance?. Here again we return to the Kelsenian dilemma – which is the grundnorm?. The Constitution itself or the norm that commands obedience to the document?.
It should be parenthetically noted that this discourse only takes a bite on the issue of validity and legitimacy, it is submitted with all due respect to pundits against the validity and legitimacy of the 1999 Constitution, that any debate on validity and legitimacy is futile, and only serve for theoretical references – the Constitution having been a working document for 24 years now. Moreover, a nation still debating on the validity and legitimacy of its Constitution is far from reaching its paradise.
For the benefit of doubts, the kelsenian theory borders on the source of validity and legitimacy of a Constitution. In other words, what gives validity and legitimacy to a Constitution?. Is it the document itself or the norm that commands obedience to the document?.
It is my humble submission that no matter the outcome of this discourse, the 1999 Constitution of the Federal Republic of Nigeria, as altered, remains a valid and legitimate document, same having been in force for over two decades, and the fons et origo of our constitutional democracy. It need not be emphasized that plethora of Court decisions abound to ground this submission. Therefore, it quite expedient to trace the antecedence of Nigeria’s constitutional development.
THE CONSTITUTIONAL ODYSSEY OF NIGERIA: FAR FROM CONSTITUTIONALISM?.
The history of Nigeria’s constitutional development was heavily influenced by colonialism. The British authorities exerted so much influence on the administration of the daily living of the people. Aside the fact that we received English laws, they also made Extended English laws directly applicable to Nigeria.
Accordingly, upon the 1914 Luguardian Amalgamation of the Northern and Southern Protectorates, the constitutional voyage of Nigeria began. By way of succession, the development ran through the 1914 Lord Lugard’s Constitution, the 1922 Hugh Clifford Constitution, the 1946 Arthur Richard’s Constitution, the 1949 John Macpherson’s Constitution, the 1954 Oliver Lyttleton’s Constitution, and the 1960 Independence Constitution, which was enacted by the influence of the colonial Parliament.
In 1963, Nigeria became a Republic. However, the Republican Constitution was a verbatim re-enactment of the 1960 Constitution. After the military takeover and end of the Civil War in 1970, some prominent Nigerians selected by the military dictators enacted the 1979 Constitution, which lasted longer than the previous frameworks to govern Nigeria.
In 1985, a Constitution was drafted under the military administration of Gen. Ibrahim Babangida, and ten years later, the 1995 Constitution drafted during the late Gen. Sani Abacha’s junta, both did not see the light of the day. In fact, the fashion and procedure of making this constitutions had nothing to do with the people nor even a referendum. This was the beginning of the constitutional albatross of Nigeria. The Absulsami Abubakar’s 1999 Constitution was almost the same with its predecessors.
The constitutional development of Nigeria clearly shows that since it’s inception, the people have been excluded from direct participation, thereby making it alien to addressing many common issues of general interest. Constitutionalism goes beyond the enactment of an ordinary document. It is an act of the people in consenting and giving acceptability to a legal document which binds them as the supreme code. Regrettably, the various Constitutions have not enjoyed the benefit of the people’s consent. Little wonder, late Chief Gani Fawehinmi of blessed memories once remarked, “Our constitutional arrangements since 1914 to date have never truly reflected the political, economic, social, cultural and religious realities of the country. Above all, the people of the country have never had the opportunity to make inputs into, accept, or reject any constitutional framework through a referendum. Consequently, the masses of our people have always been treated as aliens in all constitutional processes from 1914 to 1999, and all constitutional frameworks have always been imposed on them.”
In the just concluded National Constitutional dialogue, held on the 14th of March, 2024, at the Nigerian Institute of International Affairs (NIIA), Lagos, the agitation for a total overhaul of the subsisting military decree No 24 of 1999 in force in Nigeria as 1999 Constitution of Nigeria (as amended), was made express and unequivocal by statesmen and political office holders. What is the fate of this decision in the face of the call by the National Assembly for constitutional amendment?. Only tomorrow can tell.
UNDERSTANDING WHAT IS MEANT BY A PEOPLE’S CONSTITUTION
The use of the phrase “people’s driven”, “people’s oriented”, and people’s centric”, is very important in understanding what is meant by a people’s constitution. In strict legal parlance, it is akin to the principle of “Autochthony.” The source of autochthony is the Greek word αὐτόχθων translated as springing from the land. It usually means the assertion of not just the concept of autonomy, but also the concept that the constitution derives from their own native traditions. Autochthony simply means that a constitution is, legally speaking, ‘home grown’ or rooted in native soil. By this it is meant that the constitution owes its validity and authority to local legal factors, rather than to the fact of enactment by a foreign legal process.
Autochthony was especially important to countries which achieved independence from the former British Empire (colonization; decolonization). As originally set out by KC Wheare, constitutional autochthony required that there be no legal continuity between the formerly supreme. In political science parlance, constitutional autochthony is the process of asserting constitutional nationalism from an external legal or political power. This principle has been a major feature of the constitutional development of many nations like: Bangladesh, India, Pakistan, Ghana, South Africa, Sierra Leone, Zambia and many other members of the British Commonwealth.
To appreciate this principle, we need to recall the reign of King John of England, who had unchallenged authority and overwhelming influence and could do no wrong. The pattern of government led to the enactment of the Magna Carta which forced the King to reduce his power. This was the emergence of the principle of ‘Majority Rule’, and actualization of the ‘People’s Sovereignty’ for the first time. Since then, the system changed radically, and in May 25 and September 17, 1787, the United States of America concluded their constitutional drafting at the Constitutional Convention assembled at the Independence Hall, Philadelphia. The exercise was as a result of the revolt led by Daniel Shayagainst tax collectors and the Courts of Massachusetts. This marked the beginning of the use of the phrase, “we the people,” which have spread across various nations in the world.
The 1963, 1979, and 1999 Constitutions have followed same path. The preamble emphasis the authority of the people as the source of the government and foundation of statehood. It provides this, “We the people of the Federal Republic of Nigeria, Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding; and to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people. Do hereby make, enact and give to ourselves the following Constitution”.
But does this represents the position of the people in Nigeria, especially considering the fact that section 14(2)(a) of the 1999 Constitution (which provides that “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority’’), is in chapter 2, same being non-justiciable?. Have the people ever been sovereign in Nigeria?.
TOWARDS A NEW PEOPLE’S DRIVEN CONSTITUTION: HIGHLIGHTS OF NOTABLE CONSTITUTIONAL CONFERENCES
No doubts, we have since realized that there is need for a new constitution, this is due to its so many lacuna, imbalance and draconian features. The Federal Government of Nigeria have always tried to forge a way forward in this quagmire. Some notable national constitutional conferences have been held, but all to no avail. It simply means that the making of a new constitution depends at large on the will power of the government, and people in consensus.
On May 18, 2000, a Joint Committee to Review the 1999 Constitution was set up by the National Assembly to understudy the Constitution. This was a great move to garner support from the legislature in other to facilitate the process. It ended in futility.
The 2005 National Political Reform Conference (NPRC), was another platform to look into the federal system of government and possible factors militating it. The NPRC was created to reach a consensus on aspects of the federal structure, resource control, devolution of power to federating units and explicit recognition of ethnic nationalities as a means of finding a lasting solution to perennial unrests in various parts of the federation between 1999 and 2007. It submitted it report by July 2005, but same was never implemented due to some certain factors.
The 2014 National Conference is the most recent and notable conference organized by the then President to look into the constitutional future of the nation. In his inaugural speech, former President Goodluck Jonathan, said, “Over the years, well-meaning Nigerians have drawn attention to inadequacies in our current Constitution. Some have described it as a Military-inspired document which does not take into full consideration the genuine desires and wishes of the people…”
Amongst others, the conference recommended a Modified Presidential System, a home-made model of government that effectively combines the presidential and parliamentary systems of government. According to the report; the president shall pick the vice president from the Legislature; the President should select not more than 18 ministers from the six geo -political zones and not more than 30% of his ministers from outside the Legislature. Reduction of cost of governance by pruning the number of political appointees and using staff of ministries where necessary. Like the Obasenjo’s NPRC, the implementation of the 2014 National Conference Report, was never implemented.
In the face of these, calls have been made for the federal government to organize a Sovereign National Conference (SNC), where a brand new constitution would be made and subject to plebiscite and/or referendum by the people. In fact, whatsoever the case maybe, Nigeria is due for a new people’s driven constitution.
Renown lawyers and prodemocracy campaigners have repeated called for a constitutional overhaul. For instance, former Chairman of the Body of Benchers, Chief Wole Olanipekun, SAN recently reiterated the need for a total overhaul of the 1999 Constitution. He described the recent alterations of the constitution as “charades and widow dressing.”
THE MARCH 14TH, 2024 NATIONAL CONSTITUTIONAL DIALOGUE: THE NEED FOR A SOVEREIGN NATIONAL CONFERENCE (SNC)
On the date aforementioned, elder statesmen, jurists, political leaders, and experts assembled to discuss the constitutional feature of Nigeria. It was the consensus that Nigeria is due for a new people’s Constitution . The dialogue which was organized by the Patriots, a group of eminent Nigerians and elders in honour of late legal luminary, Professor Ben Nwabueze, SAN, tagged the theme: “Lawful Procedures For Actualizing A People’s Constitution for Nigeria,” the event was to also mark the 10th anniversary of the convocation of the 2014 National Conference, which was set up by former President Goodluck Jonathan on March 17, 2014.
Renown constitutional lawyer and human rights activist, Prof. Mike Ozekhome, SAN, noted that the 1963 constitution was the best so far and recalling what the regions did because they had control of their resources and contributed 50 per cent to the centre from which they also shared 30 per cent, he stressed the need for a new grundnorm along that line.
He noted that, “The 1999 Constitution was imposed on you and I, militarily, by a military junta led by General Abulsalami Abubakar, 28 members of the Provisional Ruling Council. It was never subjected to any referendum of the people. And guess what? The present constitution was attached as a mere schedule… Nigerians must own their own constitution through a popular referendum of the people like was done to the Midwest constitution on the 10th of August 1963 when it separated from the Western region. Without that, we will just be on the journey to no destination.”
He continued: “Professor Nwabueze gave us very beautiful tit-bits as to how we can bring about a people’s constitution. In his seminal paper, Legal Authority for the convening and holding of a national conference and for the making of a people’s constitution. The present National Assembly is already in place because your fears have always been that in trying to bring about a people’s constitution, we are going to sideline the National Assembly It is not possible It is a reality because the National Assembly itself came into being, elections were held in 1999, even before the 1989 Constitution, so the elections were held, so the emergence of the National Assembly, therefore, was based on the will of the people, what we call salut populi supremalis. “The will of the people is supreme, so Professor Nwabueze therefore theorized that because the National Assembly is in place, they have the power to convene and conduct a National Conference and that what they should do is that they should look at their powers beyond the power to alter the constitution in sections 8 and 9 and go to section 315, which makes the present constitution as an existing law, being a document attached as a schedule to decree number 24, and that the National Assembly should yank off the constitution from that schedule, other than using section 1, subsection 1 And then simultaneously replace it with a brand new constitution, doing away with the schedule, with the military dictatorship aura.”
It is my humble opinion that the conference being envisaged to be held by the learned legal sage should be a Sovereign National Conference. In respect of a Sovereign National Conference (SNC), the submission and expositions of legal sage, Aare Afe Babalola, SAN, is comprehensive; “A Sovereign National Conference is one convened to reconsider the country’s political future. It is designed to carry out political transformation, in other words, to chart a new course. It is appropriate where the economic, political and social structures seem incapable of solving the problems of the country as it is in Nigeria today so that instead of resorting to arms, a peaceful and orderly change can take place. The distinguishing word “sovereign” in a Sovereign National Conference therefore connotes that the body is not merely advisory or consultative. Rather, it is an Assembly of elected Representatives of the Nigerian people, backed by an enabling law, with the mandate and power to fundamentally restructure the political, economic, social and constitutional future of the country. A Sovereign National Conference will not have any “no-go areas or non-negotiable issues”. Rather, it will have the broadest mandate to determine the political, economic, social, judicial, legislative and security structures of the Federation, which will include issues of state police, fiscal federalism; multi-religiosity; separation of powers, bicameral legislature or otherwise, salaries and emoluments of legislators, fundamental human rights; and fundamental objectives and directive principles governing the coming together of different parts of Nigeria as a Federation. The enabling law would ensure that the outcome of the Sovereign National Conference will receive the status of a draft Constitutional Reform Bill which will be passed by the National Assembly without any amendment.”
The legal sage continued: “To ensure broad-based representation and efficiency, the Sovereign National Conference should be convened as follows: Two to three delegates per state, elected on zero party basis. Every ethnic group in Nigeria should be represented at the Sovereign National Conference. Representatives of accredited professional, religious and non-governmental bodies, who will be distinguished personalities with unimpeachable records. Such organizations will be proportionately represented, based on their numerical strength. 50-50 representation for both women and men. At least 20% representation of youths in the SNC. Here I adopt the African Union’s definition of youth, which is “every person between the ages of 15 and 35 years”. The Principal Officers (Chairman, Deputy Chairman and Secretary) of the Sovereign National Conference to be elected internally by its members during the inaugural sessions of the body.”
The above quotations by renown jurist settles the way forward. I can only reemphasize that any document being agreed upon as the constitution should be subject to a general referendum of the people. This is the norm in the kelsenian theory. It is the will power of the people that gives the constitution its validity and legitimacy. The people should be given that ample opportunity to give a nod to the constitution.
RECOMMENDATIONS
The whole gist of this discourse is geared towards driving home the fact that the Nigerian Constitution is due for a total overhaul, and not amendments. The National Assembly thinks they would be excluded from the process of making a new constitution – No. In fact, this is the time the ever alluring role of the legislature is needed for nation building. Therefore, the process of making a people’s constitution can be driven in any of the following ways:
- Enactment of an Act of Parliament to drive the process: the National Assembly can enact an Act to deal solely with the issue of making a new constitution that would subject to plebiscite and/or referendum of the people.
- Amendment of the Constitution: to allow for plebiscite and/or referendum of the people, after the making of a new constitution subject to laid down provisions in the Constitution.
- Presidential Executive Bill: the President can by way of an Executive Bill call for the framing of a new Constitution with the consensus and approval of all the legislative houses. This process should involve the yanking out of the 1999 Constitution from the schedule of the Decree No. 24 which is still subsisting.
- Sovereign National Conference: far the most generally agitated for, an SNC can be organized comprising of representatives from all sprees of existence to make contribution to the making of the constitution.
CONCLUSION
The consensus of notable and purposeful view tilts towards the making of a new constitution for Nigeria. Further amendments have become unnecessary as same is just a vicious circle. The time is now, the federal government in line with its radical reformation should endeavor to overhaul the constitution as same has been rendered otiose. It is like patching a tire for so many times and years, and still expecting it to function like a new one. The best option is to replace it. The constitution of Nigeria is due for an overhaul and replacement.
FOOD FOR THOUGHT: “The constitutional Assembly was a master of its own procedure and it’s powers were not limited or fettered by an other authority. It was a self-directing and self-governing body. It was the second of it’s kind in Asia, the first being the Chinese National Assembly, conceived by Dr SUN YATSEN and convened by his successor MARSHALL CHIANG KAI SHEK…” Dr Hari Chand, during the Constitutional Conferences in India and China.
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