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Deepening debate on whether National Assembly can enact brand new constitution for Nigerians

By Joseph Onyekwere |   20 July 2021   |   4:15 am  

Not long after the Nigerian Constitution became operational in 1999, its defects began to manifest. First and fundamental, some Nigerians complained about the preamble, which claimed: “We the people of the Federal Republic of Nigeria, having firmly and solemnly resolved…” The argument was, and still is, that there was no time the multi-ethnic nationalities that make up the country assembled to agree on the content of the document.

Again, critics argue that the non-justiciability of the Chapter 2 of the document, which contains the fundamental objective and directive principles of state policy, is a serious drawback. In addition, there are other weaknesses identified in the Constitution, in relation to fiscal federalism, resource control and the exclusive legislative list, which contains 68 items in the second schedule. The argument is that the items are too many and unwieldy for the federal government to exclusively appropriate and execute.

As a result of those defects, many Nigerians have called for outright replacement of the Constitution. Foremost lawyer and former president of the Nigerian Bar Association (NBA), Chief Wole Olanipekun (SAN), said the constitution requires total repairs. He said: “The constitution needs a total overhaul, a redrafting, a re-crafting, and a total replacement, starting from the preamble to the definition schedule.” He is a not alone, other eminent citizens and socio-cultural organisations had repeatedly agitate for an autochthonous (home-made or fresh) Constitution. For example, elder statesman, Aare Afe Babalola believes that the 1999 Constitution cannot sufficiently address the socio-economic challenges currently pummeling the nation. Babalola, who described the 1999 Constitution as part of the problems of the country, advised President Muhammadu Buhari to consider the drafting of a new constitution that will capture the agitations of many Nigerians. But it seems those concerned are not yet interested in the idea.

Currently, the agitations have gained momentum, fueled by the ongoing bid to further alter the ‘troubled’ document by the National Assembly. This followed several attempts in the past to amend or alter the document. While the 2011 alteration was successful, other attempts ended up as drains on public fund. It appears that the more the document is altered, the more its defects become visible, intensifying calls to do away with it.

Yet, the current National Assembly wants to continue to alter it by ruling out calls for a new Constitution. At the public hearing on the review of the Constitution in Abuja June 2, 2021, the Senate declared that although a completely new constitution was desirable, the extant law does not support it. Chairman, Senate Committee on Constitution review, and Deputy President of the Senate, Ovie Omo-Agege, who made the declaration, noted that section 9 of the Constitution had already foreclosed a new Constitution.

He said: “Now, some of our compatriots have urged that rather than amending the Constitution, we should make a new Constitution all together. We respect this opinion, and we believe it is a most desirable proposition. However, we are conducting this exercise in accordance with the extant legal order, which is the 1999 Constitution.

“Specifically, Section 9 of the Constitution empowers the National Assembly to alter the provisions of the Constitution and prescribes the manner in which it is to be done. Unfortunately, it does not make similar provision or provide mechanism for replacing or re-writing an entirely new Constitution,” Omo-Agege argued.

Prof. Edoba Omoregie

Partially agreeing with the deputy senate president, Edoba Omoregie, a professor of Comparative Constitutional Law and Federal Governance, explained that autochthonous Constitution is usually enacted by way of referendum or plebiscite. “Unfortunately, the current section 9 of the 1999 Constitution does not permit referendum or plebiscite. Some have argued, and I agree with them, that the duty of bringing about a whole new Constitution is thus beyond the National Assembly. It is that of the people. Since this is the case, the National Assembly cannot promulgate a whole new constitution,” he told The Guardian.

Prof. Omoregie, however, argued that the National Assembly could create avenue to empower the people to be able to promulgate a whole new Constitution by simply altering Section 9 of the Constitution. This, he said, can be done by the lawmakers proposing an alteration of Section 9 to institute referendum or plebiscite, as the only way a new Constitution or alteration to the extant Constitution can be enacted.

His words: “The challenge is that under the current provision of section 9, four-fifth majority of all members of the National Assembly must endorse the proposal to amend Section 9, including an additional hurdle of two-thirds of the state assemblies endorsing the proposal, and the president assenting it, before the alteration can come to fruition. It is a difficult and cumbersome process.

“Section 9 of the Constitution is the only portion of the section that provides how the Constitution can be altered (not amended). The section confers the National Assembly with the power to commence the process of constitutional alteration. This does not mean only the National Assembly can initiate the process.

“However, it is in the National Assembly that the process starts by way of a proposal for an Act to alter the Constitution. Any other stakeholder, especially the President, can approach the National Assembly with an Executive Bill proposing constitutional alteration. That is why those who say that only the National Assembly can initiate the process of federal system reforms are being clever by half. If the executive branch is keen, it can approach the National Assembly with an Executive Bill proposal, setting out terms of such reform initiatives.”

Human rights lawyer and activist, Dr. Femi Aborisade, said there is no limit to the power to alter. According to him, alteration may be marginal or comprehensive. It all depends on what changes the majority of the members and the leaders of the ruling parties ultimately want, he argued. He insisted that through Section 9, the right to secede, for example, might be inserted or introduced into the Constitution.

“There are countries that have such a provision in their Constitutions. Article 72 of the former USSR Constitution had it. It reduces tension and gives a sense of caution or moderation to majority ethnic groups. But right to secede without adoption and implementation of income redistribution and income inequality reduction policies and programmes would only replicate the problems in Nigeria, as presently constituted in each of the Republics that may emerge,” he pointed out.

Legal scholar, Dr. Abiodun Layonu (SAN) simply said the argument that the lawmakers cannot deliver fresh constitution is skewed. According to him, the power giving to the National Assembly to alter the constitution includes substitution; hence the lawmakers can use the process of amendment to deliver a new constitution.

Constitutional lawyer and author, Chief Sebastine Hon (SAN), argued that since by section 4(1)(4) of the Constitution, the law-making powers of the federation are vested in the National Assembly, it has the constitutional capacity to play a pivotal role in originating and seeing to the enactment of a fresh Constitution, if the contents of the exclusive and concurrent legislative lists are considered as well.

He, however, noted that there must be concurrence from the various State Houses of Assembly, as named in section 4(6) and (7) as well as in the concurrent and residual legislative lists. He insisted that even though there are no express provisions anywhere in the body of Nigerian laws, including the Constitution, authorising the National Assembly to enact a new Constitution, the lawmakers could deliver a new Constitution.

“This is because the word ‘law’ in Section 4(1)-(5) is so all-encompassing that it includes even the Constitution. Also, the ejusdem generis rule of statutory interpretation, which expands the ordinary meaning of particular words in a statute to include similar words or other words of the same genre, will accommodate this interpretation. In other words, ‘law’ will, under this principle, be interpreted to include ‘Constitution.’

“Finally, even when there exists a serious impasse, creating a complex legal and political situation whereby all Nigerians will rise up in unison to discard the current Constitution (which is hypothetical here, anyway), the National Assembly qua the State Houses of Assembly, under the doctrine of necessity, will validly and lawfully deliver a brand new Constitution to Nigeria. Remember that this doctrine was judicially approved by the Supreme Court in Lakanmi vs. Attorney-General of Western Region (1970), wherein the Supreme Court legitimised the actions and policies of the military junta of General Yakubu Gowon, even though it had held in that same case that the said junta came through an illegal means.

“Let no one argue that since the present legislature was the product of a Constitution enacted by the Military instead of by the people as stated in the preamble, it lacks capacity to enact a new Constitution for us. No, it does have legal and constitutional powers to do so, even under the doctrine of necessity,” he argued.

For the immediate past president of the Campaign for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu, the federal government could send an executive bill to the National Assembly for an Act to enact a Constitution for Nigeria or the National Assembly itself can initiate such a bill setting out the modalities for the convocation of the people’s conference with a view to addressing certain critical areas.

Ovie Omo-Agege

The areas he mentioned are to: a) Identify all the relevant and critical peoples of Nigeria to participate and be represented in the conference. b) Specify the broad areas and issues for consideration. c) Provide the necessary legal framework for the processes, procedure and proceedings and d) Prescribe possible time frame within which to conclude the exercise.

Ugwummadu further suggested that the legislation must necessarily provide that the outcome of the deliberations and resolutions must be returned to the Nigerian people through a referendum or plebiscite for final endorsement. This, he said, has become very important to allay the fears of the legislatures that they may not be part of the Constitution making processes. Indeed, the legislatures across board will have to send representatives to the proposed assembly.

Still on the reasons for the suggested legislation, he argued that it provides a firm legal framework to the proposed exercise and guarantees the finality of decisions of Nigerians without further manipulation as a true expression of the peoples’ will.

He said: “The final document will then truly become an autochthonous constitution, people-driven, process-led, citizens-centered and therefore owned and can be defended by the people. The members of the National Assembly cannot craft a Constitution, but can make and amend existing laws and not Constitutions. There is a difference between a law and a constitution in the hierarchy of legislations.

“The laws are pieces of legal standards and principles being aggregates of legislations and judicial precedents enacted by the legislature in a democratic setting to regulate human activities and powers of governments in relation to citizens, recognising the powers and privileges that the citizen have in that society. The Constitution on the other hand is “the fundamental and organic law of a nation or state that establishes the institutions and coercive apparati of government, defines the scope of governmental sovereign powers and guarantees individual civil rights and liberties”. Black’s Law Dictionary, Eight Editions. P. 330.

“It is this Constitution, being the grundnorm that provides the source and provenance of every other law and legislation in the society. The people of a political entity and not representatives in the legislature make such Constitution. In that regard, the Constitution is higher in hierarchy to other laws and is vested with legitimacy as opposed to mere validity.”

Lagos lawyer, Yinka Oyeniji, faulted the preamble to the Constitution, which he said, suggests that it was made by the Nigerian people and that it derives its sovereignty from the people. He also faulted Chapter 2, which stipulates social peculiarities that must be considered in governance, but are regrettably made unenforceable.

Oyeniji, however, argued that the National Assembly comprises the peoples’ representatives. According to him, they are deemed to act in the interest of the people at all times. This, he insisted, includes an amendment of the Constitution as the need arises.

“Nigeria’s Constitution has been drafted by its people through its representatives. Those are members of the National Assembly, who have been conducting amendments on it till date. In that wise, it is deemed autochthonous because members of the National Assembly are representatives of the Nigerian people,” he argued.

Law lecturer, Ms. Uju Okeke, declared that Section one of the Constitution makes it supreme over everybody and institutions, including the arms of government, and so, ensuring that those arms of government derive their powers from the Constitution and cannot act contrary to it.

“Section 4 vests the legislative power on the National Assembly to make laws for the peace, order and good governance of the federation or any part thereof with respect to any matter included in the exclusive legislative list. Section 9 empowers it to alter any provision of the Constitution. This alteration could involve the amendment of almost the whole Constitution thereby giving Nigerians a brand new one.

“But on the making of a new Constitution from the scratch, the Constitution is silent, maybe because it is ideal that a constitutional conference be called. This is necessary because it will involve the representation of all interests beyond those represented at the National Assembly. This will give the Constitution legitimacy because it is an expression of the will of the people,” she argued.

Okeke argued that having a new Constitution from a constitutional conference is preferable because the National Assembly, which derives its powers from the Constitution, should not be allowed to make it to avoid conflict of interest. She explained that although the National Assembly consists of representatives of the people, Constitution making is too serious and fundamental that people would not want to delegate it to their representatives, but carry it out by themselves, except the Constitution made by the National Assembly would be subjected to a referendum.

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