For the Nigerian Bar Association (NBA), the National Assembly is going about amending the constitution the wrong way. The lawmakers insist on going ahead with the process as they rejected NBA’s suggestion of a referendum. Who is right and who is wrong? John Austin Unachukwu, Adebisi Onanuga and Eric Ikhilae collate the views of lawyers who argue that Constitution making is incomplete without the people’s participation.
The negative reaction by the National Assembly to the Nigerian Bar Association’s (NBA’s) criticism of its latest attempt to further tinker with the Constitution, has again, reinforced one cardinal point.
It has strengthened the general belief that there is yet no consensus on how best to confront the nation’s myriad of socio-political challenges, which root have been variously traced to the fact that the country exists on a warped foundation sustained by a faulty Constitution.
Until the NBA expressed its discomfort over what it described as a disorderly approach to Constitution amendment by the National Assembly, many were equally at sea as to what the Legislature aimed at achieving a process that sees almost every arm of government working at variance.
As at the last count, there are about five different committees working separately on this Constitution review project. There was the Justice Alfa Belgore committee set up by President Goodluck Jonathan. Since the committee submitted its report some months back, nothing has been heard of what use the Presidency has committed it or what the government intends to do with it.
Each chamber of the National Assembly has a committee for this purpose, just as the Governors’ Forum, a body of serving governors, is also working in this direction. Aside these, some interest groups, like the NBA, have also been encouraged to set up committees on this assignment.
The seeming absence of a clear direction as to what goal the National Assembly intends to achieve, in view of what appears the absence of coordination in the activities of the plethora of bodies working to amend the Constitution, may have informed the reservation expressed by the NBA President, Okey Wali (SAN) over the entire process.
Wali was quoted to have said: “The NBA has some reservations about the ongoing process as it does not appear to be very orderly. There is no clear agenda or known methodology.” He feared that should the NA be allowed to go about the amendment in its current approach, that gives scant regard to the people’s participation (with just two days devoted to this purpose), the outcome will lack the required legitimacy; hence, his suggestion that the outcome be subjected to referendum.
The Legislature promptly responded, with Senate Majority Leader, Victor Ndoma-Egba and Chair, House Committee on Media and Public Affairs, Zakary Mohammed, insisting on its constitutionally guaranteed rights, as contained in Sections 4 (to perform legislative functions) and 9 (to amend the Constitution).
While Ndoma-Egba faulted the call for referendum, Mohammed argued that the one-day public hearing to be conducted simultaneously in all the 360 Federal Constituencies on November 10 and a similar exercise fixed by the Senate for November 16 in all the 109 Senatorial Districts were sufficient for the process to early the required legitimacy.
Observers, however, admitted that the National Assembly possesses the constitutional powers to tinker with the Constitution, the nation’s extant problem exceeds mere amendment to the document.
They suggest a review or, at best, a new Constitution, in view to the persistent call by many, for either a sovereign national conference or national conference to address the various challenges that threaten the country’s continued existence. They argued that the National Assembly response to NBA’s observation betrays the fact that the Legislature seems to misconstrue what the people actually desire. This position, they argued, is betrayed by the issues being canvassed by the Legislature.
They noted that while many advocate a people’s Constitution, which creation must be through a people-based process and which must address core issues that touch on the basis of the nation’s continued existence, to renegotiate the terms of further coexistence, members of the NA are concerned with mundane issues such as state creation, the retention of Federal Character principle for appointment, retention of the bi-camera legislature arrangement (despite huge financial implication on the nation’s lean resource), among others.
Observers argued that the National Assembly’s intolerance of opposing views or critics, suggests that it has a mind set to which it was working. They wondered why the Legislature appears unwilling to create a people-based process that will accommodate all shades of opinion if actually; public good forms their utmost objective.
Those who doubt the National Assembly’s ability to midwife a generally accepted Constitution are of the view that should it be allowed to proceed with its approach, the Legislature will end up creating more problems for the country as against the other way.
They cite the outcome of the last amendment which, rather than help ensure electoral justice, has created a regime of injustice at the election tribunal. They argued that time limit provided in Section285 of the Constitution has caused more injustice during election dispute that was the case before now.
They also queried the legitimacy of such provisions that appears to intrude on judicial independence and the right of the court to determine the pace it should conduct a case before it.
Some have also observed that the various issues being canvassed cannot be resolved at a mere seating of the Legislature without the involvement of the people. They questioned how issue of ethnic and religious intolerance could be resolved by mere substitution of “state of origin” with “state of residence” as canvassed by the Senate President, David Mark, without the engagement of the people.
They also contend that lingering indigenes-settlers dispute cannot be resolved by simplistic inclusion of provisions in the constitution in the form of amendment. To them, the fact that the country is a nation of indigenous people as against being an immigrant society dictates the need for the people’s involvement.
Former judge of Ondo State High Court, Justice Oluwadare Aguda argued in a paper titled: “Path to people’s Constitution,” that the nation, being a distinct entity, with diverse ethnic groupings and without recently known history of individual sovereignty, an alteration to the Constitution that will affect the relationship between the various ethnic groups can be achieved, but only with the concurrence of all the ethnic groups, large and small, making up the federation.
This, he said, could be done through a national conference or a constituent assembly in which each nationality would be suitably represented. In contrast, a “sovereign national conference” at which each ethnic-nationality will be free to assert its right to unilaterally determine its own future within the federation or outside of it might lead to the use of force. If such a situation should arise, it would be pure fantasy to imagine that people would be able to continue to live outside their traditional ancestral home areas as they are doing at present.
Aside this, there are others, who believe that since the country is currently not working and hence, requires fundamental restructuring, a piecemeal amendment of the constitution as being championed by the NA is insufficient.
Former Chief Justice of Nigeria (CJN), Justice Alfa Belgore and Chief Afe Babalola (SAN) belong to this group. They are of the view that new Constitution a review rather than amendment is imperative to make the country work. They suggested the creation of a Constitution that will lead to a fundamental restructuring of the country, reduce cost of governance and ensure effective application of the nation’s resources.
Belgore, who headed the Presidential Committee on Constitution Review, described the existing constitution as “irrelevant” to the aspirations of the citizens because it is expensive and difficult to difficult to practice.
He spoke in Osogbo, Osun State on the topic: “Nigerian Constitution: What is the Future?” He observed that the current system of government placed too much priority on recurrent expenditure, especially the emoluments of political office holders, to the detriment of infrastructural and human capital development.
Babalola in a lecture titled:”Leadership challenges: Sub-Saharan black Africa,” he delivered in Abeokuta, Ogun State s at the weekend insisted that a sovereign national conference was to address structural and constitutional crisis confronting the nation as against the ongoing constitution review process by the National Assembly.
He said what is required is how to make political offices less attractive, constitutional and legal framework to discourage the emergence of bad leadership. “This can only be done through the convocation of a Sovereign National Conference and not through piece meal amendments to Federal Constitution which is de facto a unitary constitution,” he said.
Other law experts like Solomon Asemota, Niyi Akintola and Sebastine Hon (all Senior Advocate of Nigeria); Prof Mike Ikhariale, former Chair, NBA Ikeja branch, Adebamigbe Omole and Executive Director, Socio-Economic Rights and Accountability Project (SERAP) argued that despite the seclusion of such provision in Section 9 of the Constitution, a people’s Constitution cannot be achieved without their participation.
Asemota (SAN) argued that the current procedure adopted by the NA cannot bestow on the Coonstitution, the legitimacy it requires. So, in the current efforts, we need to consult the people and the correct thing is to have a Constituent Assembly to prepare a draft but they in the National Assembly have the right to prepare a law to enable the President to constitute a Constituent Assembly to draft a constitution which they will also pass into a law after a referendum.
“The truth of the matter is that the amount of consultation which they say that they want to do in one day makes it a charade, because you cannot have almost everybody to all come together just for one day, you are not serious because you cannot get that. So it is left for the Bar Association and in fact for all lawyers to make sure that we get the peoples input through a referendum, this is very important.
“In 1999, there was this constitution review by Yusuf Mamman, which turned out to be difficult because they could not overcome this question of “we the people of Nigeria”. Any time we have a new government, they say they want to amend the constitution and all these efforts yield no positive results. The National Assembly should not create more problems for Nigerians. They should not throw Nigerians into further difficulties or into war over all these,” Asemota said.
According to Akintola, the NBA, in 2010 produced a model constitution which touched on every problem besetting this country and urged the then National Assembly leadership to invite other stakeholders and Nigerians through a referendum to make their own input
“After we submitted the draft NBA Constitution, the National Assembly complained that they did not have the required skills and manpower to put in draft form, that we should help them. The NBA set up a Committee with Chief Mike Ahamba (SAN) as Chairman, Yusuf Ali (SAN) and myself as alternate Chairmen.
“We spent two weeks in Abuja at our own expense and produced the draft for them. We advised them again to get input from other stakeholders and Nigerians through a referendum but they want all these. Now they are on a jamboree to waste funds and provide job for the boys. I read that they have a budget of N10million for each Federal Constituency. Now, multiply this by the 360 Federal Constituencies that we have. When are we going to get out of corruption in Nigeria?
“How many people are they going to see or find in those constituencies, how many stakeholders will visit that place to make inputs. Conduct a referendum and let Nigerians and stakeholders make input into the making of their constitution.
“They are saying that it is not in the Constitution, when referendum was done in South Africa, was it contained in their Constitution, the American constitution does not contain up to one third of Nigerian constitution, yet everything is there, when will our lawmakers learn to respect the views of Nigerians,” Akintola said.
Hon acknowledged the National Assembly’s right under Section 9 of the Constitution to initiate amendment of the Constitution, but argued that in exercising such right, Nigerians must be carried along and the process must exhibit untrammeled and crystal clear transparency.
“The NBA leadership has so far faulted the idea of sidelining the Presidential Report on constitutional amendments. The NA should not brush this issue aside. Personally, I see no reason why the NA would restrict Nigerians to very limited areas of proposed amendments. This has beclouded the transparency of the exercise.
“Finally, I will personally suggest a deep alteration that would make the Judiciary more independent. First, the National Judicial Council (NJC) should be imbued expressly, with powers to propose capital votes for State Courts. This will remove those courts from the asphyxiating grip of the Executive. Secondly, section 285(6) and (7) on time limitation be amended so that retrials could be entertained,” Hon said.
Ikhariale stated that it was proper for the National Assembly to collate the views of the people in amending the Constitution. He faulted the argument that the Constitution did not provide for referendum, arguing that such was inadequate reason to deny the masses participation in the amendment of a fundamental document that will regulate their lives and conduct such as the Constitution.
To him, the Constitution will only provide a broad framework; it is left for the National Assemble to work out the minute details.
“Where is it contained in the constitution that the National Assembly shall engage the services of experts in the process of Constitution amendment. The views of the people must be expressed, collated and respected, that is the only time you can say, we, the people of the Federal Republic of Nigeria anything outside this will not meet the yearnings and aspirations of the people,” Ikhariale said.
Omole argued that “there is no way we can have a constitution without having a referendum. People need to agree that this document represents our consensus. We want it or we don’t want it. So, there should be a referendum on issues like state police that some are clamouring for.
“So, if the NASS is saying they are not going to go by the way of referendum, then there is no way we can have a constitution that has the aggregate opinion of the people, a constitution of which there must be a refrendum, where the people would agree to certain issues or not. So, where we ignore key issues, we would just come back to level zero.
“I am sure that if people do not have faith in that constitution, it is not going to work because what you will discover is that even the so called representative of the people as at today, the executive members, they don’t have faith in that constitution.
