October 21, 2021


documenting the nigerian story…

Avoid taking the slippery slope to constitutional review (1)

Permit   me    to   present    to   your   august    body    some    ideas,    suggestions     and recommendations which l hope will help you in carrying out the processes the two wings of the National Assembly have embarked upon for the alteration of the 1999 Constitution. Although l have read the 17-item list of issues you invited comments on from members of the public, l wish, if you permit me, to address only four issues that speak to some of the items directly and others consequentially.

Firstly, I intend to dwell on the constitutional validity, practicality and feasibility of referendum as a mechanism for the adoption of either an altered version of the existing document or of a wholly new one. Secondly, l shall briefly address some of the challenges associated with the vexed issue of devolution of powers by reference to how to juggle the legislative lists. Thirdly, l will speak to the controversial matter of State Police and the place of local government system. In all these instances l shall propose some recommendations.

On Referendum

Of recent, it has become fashionable to lay all the evils bedevilling our polity, society, the economy etc at the door of the 1999 Constitution, the authorship of which has gratuitously been ascribed to me personally. My attitude to this ‘donated’ honour or infamy, depending on how you view it, is to laugh it off or humbly state that it is unearned. Viewed differently, it is ideal talk engaged in by lazy commentators and, in some cases, otherwise distinguished Elder Statesmen and e-warriors.

A motley of critics of all hue and cries have disparaged the 1999 Constitution for telling a blatant lie when it claims in its preamble to have derived its authority and sovereignty from “we the people” when in fact it is the creature of a military decree. To remove the imprimatur of personalities from its vestiges and cure it of the fib, there have been varying calls for the emergence of a wholly new constitution on which the “people” will confer legitimacy with its adoption through a referendum. Regrettably, such calls have not come only from ‘separatist’ elements. Some clever chaps attempted to hoist the idea on the nation by calling for the adoption of a new constitution which they surreptitiously cooked during the National Conference of 2014. A legal icon, a National leader of the Bar and an Elder Statesman, has thrown his  weight  behind  the  idea  by  calling  for  the  outright  rubbishing  of  the  1999 Constitution and its substitution with the 1963 via the instrumentality of referendum.

One must observe that, apart from being subversive of existing constitutional and legal order from which all institutions and offices of the nation derive their legitimacy, such calls have tended to obfuscate issues and ignore facing basic questions of the legality, practicality and feasibility of conducting a referendum.As a participant at the National Conference, 2014, l had the occasion to address the issue of the use of referendum. I consider it pertinent to reiterate the views l expressed then and to make own recommendations on the subject matter as follows.

It is incontrovertible that the Constitution of the Federal Republic of Nigeria, 1999, contains, very clear provisions, under section 9, and has spelt out explicit rules to govern specific steps to follow to alter its provisions, including the adoption of an entirely new constitution if deemed desirable. I am satisfied that the procedure for any alteration does not envisage or recognise “referendum” as a mechanism for bringing about any change to the existing constitution or the adoption of a new one.

Moreover, for any alteration to the constitution to be legitimate or credible, it must be validated by the concurrent adoption of the National Assembly and the resolution in support of 2/3 (24) of the Houses of Assembly of the States where this is assented to by the President. Today,  many  are  vigorously  urging  for  the  adoption  of  the  Report  and  Draft Amendments to the 1999 Constitution as proposed by the National Conference, 2014, for a restructured Nigeria via referendum. This recommendation is faulty for many reasons.

Which of the over 600, often conflicting and many of them of a policy nature, recommendations do they want adopted? On whose mandate can the conference members rely to hoist such sets of documents on the nation? Which institution has the mandate to conduct the referendum? Under what legal or constitutional cover? Since a referendum is designed to present two clear choices of ‘Yes’ or ‘No’, What issue or issues will be canvassed for adoption or rejection during the referendum? Are we going to put Nigerians to a choice between the much touted 1963 Republican constitution, with its Westminster parliamentary system and four regions, against the 1999 Constitution? Or do we put them the choice to accept the amorphous, albeit discredited, policies and recommendations contained in the 2014 National Conference Report as against the 1999 Constitution? Proponents of referendum, as a panacea for all the ills of the 1999 Constitution, have avoided facing up to these and many unexplored and unresolved questions squarely. But we are entitled to ask them and to demand clarity before embarking on the slippery slopes to anarchy, political uncertainty and constitutional crises.

While we are it, one needs not be reminded that the National Conference comprised unelected members – however dignified or experienced they may be in their individual capacities – and, consequently, it lacked the powers of a constituent assembly, in the exercise of which it may propose or adopt a new constitution. In other words, the Confab, being unelected, does not derive its mandate from the sovereign will of the people and cannot claim to be speaking for them. For such a defective Confab to assume such a role or purport to adopt a new constitution, as representatives of the people or under any guise, would amount to the usurpation of powers it does not possess. It cannot discharge or exercise a mandate not conferred on it by law.

If the Confab, whose members lack popular mandate and whose composition is undemocratic having been assembled in a very skewed manner by the use of a template of dubious legal or constitutional basis, purports to promulgate “a new constitution”  the  constitutional  document  thereby  produced  would  tell  even  a bigger lie than is being leveled against the 1999 Constitution which is being disparaged as the handiwork of the military. It should also be pointed out that there does not exist any Act of parliament or Rules of Procedure in Nigeria that would enable any organ or under which to conduct a referendum and no agency of government is empowered by law to carry out same.

For the avoidance of any doubt, the Confab, whether at plenary or committee stages of its work, never tasked any members to propose a “draft constitution” which may be considered for adoption by “referendum” or in total disregard of the existing constitutional or legal order. As the Deputy Chairman of the Conference Committee on Law, Judiciary, Human Rights and Law Reform, I can, with humility, claim to know that we were not mandated to and none of our recommendations were couched or reduced into a new constitution. On the contrary, our clear and unambiguous recommendations on the matter, which Conference had adopted, was for any resolutions requiring constitutional changes to be channelled through the National Assembly (NASS). In anticipation of that, we even urged the President to “initiate an interface” with members of the NASS to facilitate that. How the Secretariat came up with the scenario of “a new constitution” must raise some serious questions.

To be continued

Auwalu Yadudu is a professor of Law at Bayero University, Kano