Introduction
In last week’s feature, we x-rayed the experiences of some countries whose Constitutions evolved through the medium of referendum. In today’s edition, we will explore the possibility of treading such a path in Nigeria under the present Constitution, with an analysis of the key roles which certain institutions such as the National Assembly can play in that regard.
We will then conclude some suggestions on the way forward, emphasizing the supremacy of the will of the people
The Role Of The National Assembly (NASS)
The NASS will not be ignited in the process of bringing about a new people’s through a referendum. The NASS should pass an Act, relying on and using sections 4, 13, 14 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 laws for the peace, order and good government of the Federation, by setting up a National Referendum Commission (NRC), to drive the process of a new Constitution through a referendum of the Nigerian people after a Constituent Assembly. This will enable it command the people’s legitimacy, acceptability and credibility. To do this is not rocket science. It can be done 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, the NASS should take the following steps to promulgate a New People’s Constitution for Nigerians:
1. Section 14(2) of the 1999 Constitution provides that sovereignty belongs to the Nigerian people. The present NASS, to abate their fears of being rendered irrelevant, shall be involved in facilitating the process of the emergence of a brand-new Constitution from its present constitutional review exercise.
2. It is true that the NASS can only merely amend the existing fundamentally flawed 1999 Constitution as envisaged in section 9 which provides for the mode of altering provisions of the Constitution. But, the fundamental challenge here is that the NASS will only be futility employing use section 9 to amend an inherently illegal and illegitimate militarily-imposed unitary Decree No 24 of 1999 which masquerades as the present 1999 Constitution. This is because the present Constitution (being merely a Schedule attached to a Military Decree No. 24 of 1999) is not owned by the Nigerian people. It is illegitimate and thus lacks autochthony, credibility and acceptability. Consequently, no amount of amendment of this illegitimate document of dubious pedigree can cure it of its “original sin” of illegitimacy; in the same way you cannot put something upon nothing and expect it to say.
3. It is this Constituent Assembly thus provided for by an Act the above sections that will debate the collated recommendations of the present Constitutional Review Committee, acceptable 2014 National Conference lofty recommendations and some relevant provisions of 1963 constitutional. The process shall be driven by the National Referendum Commission also set up by the same Act of the NASS.
4. This enactment shall also make provisions for referendum by the people. What the NASS therefore does is to simply popularize the entire process of the final version of the draft made by the Constituent Assembly and the referendum of the Nigerian people that is predicated on the draft as propelled by the National Referendum Commission.
5. The amended version shall be voted on by Nigerians in the form of “AYES” or “NAYS” during a popular referendum. It thus becomes the outcome of the will of the people.
6. With this, the new emergent draft of the Constitution becomes autochthonous, indigenous, credible and owned by the people.
7. All these can be done within a space of mere six months.
8. The President PROCLAMS it into the New Constitution, using his executive powers even section 5 of the Constitution.
9. With this, the new document (Constitution) it can truly say, “WE THE PEOPLE OF THE FEDERAL REPUBLIC OF NIGERIA…DO HEREBY MAKE AND GIVE TO OURSELVES the following Constitution”.
10. The NASS should therefore eschew fears of being side-lined or marginalized in the emerging scenario. It is actually the main organ that drives the entire process of how a Constituent Assembly and a facilitating referendum of the Nigerian people through the National Referendum Commission can be achieved.
Conclusion
The 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 is not only desirable, but it is a mandatory requirement to ensure a peaceful and civil human society (The Rule of Law (June 22, 2016) available at: https://plato.stanford.edu/entries/rule-of-law/). Executive lawlessness or rudeness ought to be eschewed 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 (Michael John DeBoer, “Equality as a Fundamental Value in the Indiana Constitution” (2004) 38 Valparaiso University Law Review 489.). The right of every man 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 (UN, “Rule of Law and Human Rights”, available at: https://www.un.org/ruleoflaw/rule-of-law-and-human-rights/). The rule of law must therefore be protected by the Constitution.
Democracy must also be rooted in the Constitution. The people should be given a clear voice and mandate to manage the leadership 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 and access to justice. The government should also abide by the law and act within its confines to ensure the peace, stability and welfare of the general public. Democracy needs to take significance over politics in Nigeria, and oust the current practice of election malpractices which prevents 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.
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 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 undergone several amendments, and yet, it is still bad. Thus, a new solution is needed.
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 Constitution of the Federal Republic of Nigeria, 1999 (as amended) emphasized this by declaring ostensibly in Section 14(2) (a) that “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” Thus, the process the Constitution takes to come into being (emanating from the people) is even more important than the contents of the Constitution. Hence, it is important for a brand-new Constitution to emanate from the people and this can be done through a referendum.
THE WILL OF THE 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 situation 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 a fresh new Constitution that emanates from the people themselves. The will of the people is supreme (salus populi suprema lex).
(The end).
Thought for the week
However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good”.
–B. R. Ambedkar