By Afe Babalola SAN
IN the previous edition, I examined Senator Ovie Omo-Agege’s argument of the irreplaceability of the 1999 Constitution against the antecedents of Nigeria’s constitutional overhaul since amalgamation; the pre- and post-independence constitutions, the effect of military incursion on these constitutions, and the eventual transition of power which birthed the current Constitution. One thing is clear – no Constitution is too immutable or sacrosanct for change, and certainly not the 1999 Constitution. The current political and socioeconomic challenges being faced in Nigeria are by-products of a failed constitution.
1999 Constitution not an expression of the general will
One of the most important attributes of any constitution is for it to engender a mutual empathy and communal identification; it must generate a feeling of belonging and attachment to a political community. The Genevan Philosopher, Jean Jacques Rosseau, propounded the concept of General Will in the making of any constitution. According to him: “The law is the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally admissible to all public dignities, positions, and employments, according to their capacities, and without any other distinction than that of their virtues and their talents.” The legitimacy of a constitution is one of the most paramount foundations of governance. The making of a constitution should entail consensus-building which will result into a constitution that every citizen can defend with pride. In the Nigerian political sphere, one thing that is conspicuously missing is a constitution that represents the will of the citizenry.
It has been noted that the silver thread which runs through Nigeria’s ninety years of constitution-making is the perpetual search for a constitution that will satisfy the aspirations of the political elites, ensure peace, order and good government and promote the unity and the welfare of Nigerians. The Nigerian 1999 constitution is not autochthonous; it was imposed on Nigerians by the military. An autochthonous constitution is one which is completely people-oriented; the process must completely factor in the people and their elected representatives. In the words of Honourable Justice Niki Tobi (of blessed memory), a constitution is autochthonous if ‘it derives its force and validity from its own native authority and here the expression ‘native authority’ is not used in the context of a local government authority but rather in the wider context of the people in their sovereignty… Once the entire constitution making process is indigenous and home-made, the element of autochthony is fulfilled
NASS can enact a new constitution
The 1999 Constitution was enacted without recourse to a constituent assembly to assess, evaluate and codify the wishes of Nigerians. Not being a product of the peoples’ will, unsurprisingly, this constitution is not working anymore. Are Nigerians then forever stuck with this constitution, or does the National Assembly have inherent powers to replace the constitution? Senator OvieOmo-Agege, sometime last year, had reportedly expressed the viewpoint that the National Assembly does not have the power to replace the 1999 Constitution, thus: “We can only make amendments and it is explicit in sections 8 and 9 of the constitution on how we can do that and the requisite number of votes required. I say that because there are some top attorneys in this country, who for some reason, keep saying that we don’t even need any of this, that we should just bring a new constitution, we can’t do that.”
The power of the National Assembly is generally enshrined in Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 4(2) provides: “The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative list set out in Part 1 of the Second Schedule to this Constitution.’ Section 9 of the constitution makes provisions for the alteration of the constitution. Specifically, it provides as follows: 9(1). The National Assembly may, subject to the provisions of this Section, alter any of the provisions of this Constitution. (3). An Act of the National Assembly for the purpose of altering the provisions of this section, Section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.
The Deputy Senate-President rightly conceded that the National Assembly has powers to “amend” any part of the Constitution. The Oxford dictionary supports his view that although the constitution used the word “alter”, this includes the power to amend. However, the senator erred in not appreciating that the one who has a power to amend also has the power to substitute a new document. In law, the National Assembly in exercising its power to amend the Constitution can substitute a new Constitution. In court of law, a party has a power to amend any part of his statement of claim or defence. The power to amend in law has been interpreted to include the power to substitute a brand new statement of claim for his own defence. Since the National Assembly has the power to substitute a new constitution, it can put in place the process for the making of a new Constitution by means of a National Conference and referendum by the populace to adopt the work and recommendations of the Conference.
What cannot be disputed is that there is ample support in the provisions of Section 4(3) of the Constitution which empowers the National Assembly to make laws for the peace, order and good government of the Federation. Thus under the second option it can makes laws to establish a Sovereign National Conference to consider the much-needed topic of restructuring. The Sovereign National Conference 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. It will encompass a forum for national dialogue for many Nigerians to participate in nation-building in an otherwise exclusionary political system dominated by a handful of elites.
As presently constituted, the 1999 Constitution is premised on a system of pseudo-totalitarianism which makes no provision for regionalism but obliterates the autonomy of the regional units and centralizes power in a central government. It weakened the component states and impaired their powers of self-sustenance – a far-cry from the indigenous socio-economic advancements witnessed by Nigerians under a regional system of government. Therefore, to argue that the Constitution is irreplaceable is not only misleading, but is highly capable of dampening the hopes of Nigerians whose only foreseeable hope for a better Nigeria is an overhaul of the 1999 Constitution.
AARE AFE BABALOLA, OFR, CON, SAN, FCIArb, FNIALS, LLD.
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