The Nation Newspaper

Tag: new Constitution?

  • Case for a new constitution

    Today, I share with readers, a statement issued by the Yoruba International Network (YIN) on the state of Nigeria as a federal democracy. YIN mobilized diaspora Yoruba for struggle against military dictatorship in Nigeria following the annulment of the June 12 1993 presidential election. The statement was signed by Dr. Femi Folorunso, Convener, Yoruba International Network:

    “June 12, 2018 marks the 25th anniversary of the June 12 Presidential election which was won by Chief M.K.O. Abiola, but irresponsibly annulled by General Ibrahim Babangida.

    “The Buhari administration caught the whole country by surprise when a week to this anniversary it announced that June 12 will henceforth be marked as “Democracy Day.” This was in addition to awarding the nation’s highest honour, GCFR, to Chief M.K.O Abiola post-humously.  This is a significant gesture, even if it took so long in coming and despite that no important member of the government had mentioned June 12 in any political forum since the Buhari administration came into power three years ago.

    “YIN acknowledges the significance of the declaration and gives credit to the administration for the gesture even if there is a political motivation lurking behind. After all, others, including the Obasanjo administration which was the first direct beneficiary of June 12 crisis, simply looked away.

    “Nevertheless, the gesture of admitting the importance of June 12 as another watershed in the political history of Nigeria must not obscure the lingering critical questions about constitutional democracy and governance in Nigeria. These questions have become even more pertinent because of the general unease in the country.

    “Nigeria’s abysmal record on human development and well-being of citizens is now compounded by the growing and ever-changing demands on governments. There is persuasive evidence that the pursuit of economic and social reform only succeeds where it is supported in the political sphere through democratic accountability and institutional structures that have credibility and is rooted in transparent commitment to fairness.

    “A common explanation for the unease is failure of governance occasioning brazen looting of the national treasury by elected and unelected officials of state. This however is a one-dimensional view and too weak a formulation. What continue to afflict Nigeria are the reservoirs of its political history. Put simply, it means what constitutional arrangement is best for a multi-national state with over 200 linguistic groups? A fast-growing awareness is that only an unfettered federal constitution can answer this question.

    “As is the case in countries with configurations such as Nigeria’s, there are three fundamental issues at the heart of the demand for unfettered federalism. These are democracy, prosperity, and equity and fairness. It means each national unit will have a government that is as close to its wishes and values as possible and each sub-national government will have control over its resources, its wealth and determine how to use both for the benefits of its people, while also working cooperatively with a national government to promote the well-being and national security of the whole country.

    “Riddled with jargons and laboured technicalities, the current constitution of Nigeria is a flawed article of association, not a consensus document on how to organize a federal system of governance.

    “Indeed, the constitution has proved itself to be a document that demobilizes more than it can mobilize citizens towards democracy and development. Since the return to democratic governance in 1999, states have been treated less as federating units than as a collection of viceroyalty of whoever reigns as president in Abuja. This has constrained the ability of states to meet future challenges that face them. Many if not most elected governors have taken the absurdity further by behaving as unconscionable viceroys who will stop at nothing to please their sovereign in Abuja. Elected governors have become mostly fawning panglossians more interested in power than in addressing the complexity of governance and socio-economic development in critical times such as the present.

    “For example, the population of Nigeria is estimated to be 183,523,432 in 2015. In comparison, it was 37,860,000 in 1950.  Population by its very nature can be a force for good, but this is when it is guided by policies that are set within appropriate framework for social and economic development.

    “The South-Western states of Lagos, Ogun, Oyo, Osun, Ondo and Ekiti occupy a land area of 78,505.17sq.km and are estimated to have a population of 36,282,583 by 2015.

    “Although Western Nigeria is 8.38 percent of the total land area of Nigeria, it houses 19.77 percent of the population of the entire country. The six states in Western Nigeria have a combined population density of 482 people per sq.km. The population density will rise to 1032 people per sq.km by 2050 if the current rate of increase is maintained.

    “This unfolding scenario has put critical pressure on land management across Yorubaland. Land is a fundamental, but finite resource. As a result, the complexity of land in relation to achieving successful economic development, sustainable environment, and communities has never been more critical for the southwest.

    “It is imperative therefore that the Yoruba region give priority to population management, land use, and the management of physical and natural environment in a way that may be different from the rest of the country. The importance of land to the Yoruba culture and civilization cannot and must not be subject to heartless political or constitutional manipulation.

    “This calls for a more efficient and effective governance in the region than the states in the region currently deliver, and especially given the history of the region in championing forward-looking and informed citizen-centered governance.

    “If democracy is a means by which citizens can participate in the affairs of their country by freely choosing their representatives, constitutionalism is what places limits on what those so chosen are permitted to do. In this sense, every constitution serves two overlapping purposes: first to protect the rights of individuals, and second, to prevent the tyranny of the majority by making it impossible for them to make political changes at the expense of the whole.

    “In 2016, one of the representatives in the national assembly, Sadiq Ibrahim, presented a draft bill for the creation of grazing reserves across Nigeria. The draft bill was laden with cultural and political meanings that taken together represented an affront on our democracy as a multi-ethnic, multi-national country. And last month, the Buhari presidency submitted A Bill for An Act to Establish a Regulatory Framework for the Water Resources Sector in Nigeria, and provide for the Equitable and Sustainable Redevelopment, Management, Use and Conservation of Nigeria’s Surface Water and Groundwater Resources and for Related Matter.

    “Following the hostile public reaction to the bill, including from southern members of the national assembly, the government has unsurprisingly resorted to what is best described as shameless cognitive dissonance by suggesting that the proposed law was harmless, constitutional and designed for the interest of all. A close reading of the bill suggests otherwise, however.

    “The bill is a classic case of the devil being in the detail. The question is should such a bill that derogates from the power of subnational governments to have control over policies for food and water provision and security for their people have been brought to the federal parliament in the first instance?  A similar question applies to the withdrawn cattle grazing reserve bill.

    “These two events demonstrate that the case for connecting democracy and constitution, and the need for a renewed vigilance for both, has never been clearer or more urgent in Nigeria. After all, the constitution is the bedrock of our democracy and the principle that underlines it is that Nigeria will be a federal republic. The whole point of federalism is that federating units will cooperate to promote the common good and not one regional power or group forcing domination on the others through willful abuse of democratic process and the underlying principles.

    “The 1999 Constitution imposed on the Nigerian federation by departing military dictators at the end of the Transition to Democracy in 1999 is not a constitution that fosters federal democratic governance. It needs and MUST be replaced with a federal constitution duly negotiated by the peoples of Nigeria.”

     

     

     

  • Soludo: sustainable change won’t occurr without a new constitution

    Soludo: sustainable change won’t occurr without a new constitution

    Former Central Bank of Nigeria (CBN) Governor Prof Charles Chukwuma Soludo  at the weekend spoke on the economy and sundry issues of national importance including the President Muhammadu Buhari-led administration. In an interview culled from Premium Times, the ex-CBN chief foresees hope and opportunities for the new government.

    •I’m not available for public service now, says ex-CBN chief

    YOU promised not to keep quiet again and to ask more questions about the running of the economy after elections but you seem to have been very quiet since the elections. Can you now raise the questions?

    Great to see you too! And I hope this will be a short interview please. Two quick points: The elections have come and gone but that was the easier part. The hard part now begins.  Like most Nigerians, I am happy that Nigeria made history with the election. On your question, No; there was no need to raise further questions for the outgone administration.  President Goodluck Jonathan raised the bar and set a new tone in his statesmanlike acceptance of defeat. That was noble.  Last month, the government admitted that they were borrowing since January to pay salaries. What more do you want me to say? The two articles I wrote in January and February remain living documents and raised some of the salient questions, some of which may be bold markers for the new government. Our focus should be on the future and the new government.

     

     How is your relationship with Dr.NgoziOkonjo-Iweala now?

    Why do you ask? Of course, she is and will always be my dear elder sister and Madam; someone I deeply respect. We may not always agree, especially on public policy. The public spat was unfortunate. She felt she had an obligation to defend her government but she did so in a manner that I also felt an obligation to respond in equal measure. But all that is now history. There is nothing personal. Now without the encumbrances of government and its pressures, I look forward to our returning to the good old days in our personal relationship.

     

     The economy is really bad; falling oil prices, dwindling revenue, debt, inflation, unemployment, collapsed naira, etc. Where does President Muhammadu Buhari start from?

    I don’t envy President Buhari and his team. His government will preside over the transition to a post-oil economy, and it won’t be a tea party. If Buhari works eight hours a day, he has less than 7,500 hours left to bring about change in his first term in office or less than 9,700 if he works 12 hours a day, with three substantive annual budgets to go before the next elections. The clock is ticking already. But the Rescue, Stabilise and Transform (RST) Plan requires a 24 x 7 operation. There must be something in the President’s natal chart that keeps bringing him to govern us just when things are in shambles. But I see hope; I see opportunities. The president and his team have a historic opportunity to create a new Nigeria without oil; a Nigeria powered by competition and compassion. Fortuitously, Nigeria’s centenary was last year (2014). This year marks the beginning of the next 100 years.  President Buhari and the new crop of elected officers at all levels must lay the foundation for the next Nigeria; a re-engineered Nigeria with the structures and incentives to move from cake-sharing, or consumption, to cake-baking, or production. Old thinking and ways of doing things won’t work.  But an attempt to drive change from Abuja will fail. It will be akin to trying to clap with one hand. A coordinated national (not federal) response is required.

    On your specific question as to where President Buhari should begin, let me say that I don’t want to join the new industry in town which is ‘agenda setting’. Everyone is grabbing the microphone to ‘set agenda’. That’s ok. I am aware that the transition committee is working hard on an agenda, and I believe that the committee is made up of eminent Nigerians. For me, let us wait for them to unveil their action plan and we would have something to comment upon or contribute to. I am aware that the African Heritage Institution (Afriheritage) is planning a session focused on the agenda after it is announced. So, I won’t join this fashion parade of the day. Not yet.

     

     Let me be more specific. With the terrible condition of the economy, and the high expectations of Nigerians on the new government, what practical steps should Buhari take to create jobs speedily?

    I told you I do not want to discuss specifics now. For sure, job creation should be the focus of the new post-oil economy. Nigeria certainly needs a job manifesto, with a target of eight – twelve million jobs over the next four years. This is easier said than done. We are diversifying the economy by-passing the manufacturing/industrial sector to the tertiary sector (services). Creating value-adding jobs in such an economy with one of the highest rates of urbanisation in the world will task our creativity to the limit. The agenda will require a kind of coordination between the federal and state governments in a manner never seen before. Luckily the All Progressives Congress (APC) states are in majority and I hope their party will rein them in.  I have read some newspaper reports that solid mineral and agriculture sectors will be the new kids on the block to mint the jobs. That won’t happen! At least not in the manner it is being romanticised about.  They would have very limited impacts on job creation over the next four years, and over the long-run agricultural transformation will actually reduce jobs. The prospects of the solid mineral sector will depend on the policy framework and even legislation, the dynamics of commodity prices especially given the apparent end of the commodity super cycle, and the nature of forward and backward integration with the rest of the industrial structure.  Anyway, let us wait for government’s agenda before we can comment, please.

     

     In your previous answer you alluded to changing the structures of Nigeria.  What should President Buhari do with the report of the recent national conference?

     It is up to him to decide what to do with the report.  A fundamental point however is that you can’t create the new Nigeria, a post-oil competitive economy without fundamentally altering the existing constitution. The current constitution and the political-governance structures created by it are designed to share and consume the oil rent. A system designed for consumption cannot become efficient for production. Ours is a dysfunctional unitary-federalism, with a queer fiscal federalism and it won’t go too far. The federating units were created by the central government; it also created the local governments. Every month, both the governors and their local government chairmen are supposed to beseech Abuja to collect their allocations, each supposedly with powers to do whatever they like with the allocations. As oil stumbles, the fiscal viability of these creations is coming into question. Suddenly, states and local government areas designed to collect and spend oil money will be required to produce and create wealth to survive. We will see how the old order will give rise to the new without some creative destruction. The problem with the structure is that those who benefit most from it are required to dismantle it— the incentives are incompatible. We need to study the UAE (United Arab Emirates) model of competitive federalism – that created the incentives for Dubai and other prosperous non-oil regions to emerge. I have written a lot on this subject, and we can talk about this the whole day.  The point is that the APC cannot deliver sustainable change to Nigeria if it does not go to the roots, and effect systemic change. Tinkering at the margins will amount to papering over a cracked wall.

     

     That reminds me of the ongoing debate about local government autonomy and joint account with the states. Shouldn’t the local governments be autonomous?

     Autonomy from who?  I know that it makes for our emotional satisfaction to “deal with the state governors” and let the local government areas have ‘autonomy’- but only in the sense of getting their “allocation” directly and unhindered by state governments but with no incentive – sanctions regime that ties such grants to certain productivity and fiscal viability criteria. The mistaken belief is that such autonomy will ensure that resources get to the ‘grassroots’. It is a funny argument which proceeds from the old model of ‘sharing the cake’. We must decide whether we want a federal or a unitary system; not both at the same time. Are the states the federating units or both states and local governments? Funny enough, the same constitution gives the state Assemblies the power to create local governments and maintain oversight over them.  At the same time, the constitution lists the local government areas created by the military as the ones to collect “allocations” from the Federation Account.  I want to see examples of federal systems in the world where the local governments directly receive statutory allocations from the federal government and with statutory powers to spend as they wish without performance-based criteria attached to such receipts. The mind-set is rooted in the past, but the problems are unfolding in the future.When it comes to incentives and sanctions regime for creating prosperity and accountability, our current constitution is a funny document. It is even worse for effective macroeconomic management.

     

     The contest is on for zoning and sharing of political offices, and there are fears of marginalisation by people from the Southeast and Southsouth because of their poor support for President Buhari and the APC during the elections. How should Buhari assuage the fears of these zones?

     You have raised many issues at the same time.  First, given the peculiar manner the election was done in the two zones, it is difficult to know exactly how the people voted.  There is no question that a majority of people in the two zones preferred Jonathan but we know what happened during the presidential/ National Assembly election.  Prof. Attahiru Jega and INEC did a great job but we still have a very long way to go. Second, the Constitution of Nigeria creates an absurdity in the name of federal character whereby a minister must come from every state. So, states in the Southeast and Southsouth must have ministers in the federal cabinet.  Third, and more substantively, I believe that the clamour for offices is simply a power game by the elite, which has only a symbolic or emotional significance to the masses. Yes, for some reasons, people like to see someone that shares their interests or attributes in government—it has a ‘feel good’ factor. But if occupation of such office has any personal benefits, it is largely to the occupant of the office and his friends and family.

    Our recent history has shown that it hardly matters where the occupant of a particular position comes from. I am not sure how the welfare of Ota/Ogun people changed because Obasanjo was President of Nigeria, or how the man in the street of Katsina or Otuoke/Bayelsa prospered more than others simply because their sons became President.  The Southeast voted massively for ‘one of their own’ in 2011 as president,  and also had Secretary to the Government of the Federation, Deputy Senate President, Deputy Speaker, Minister of Finance and Coordinating Minister for the Economy and a coterie of other appointments. Yet, the zone had the least capital expenditure in the five-year presidency, and there is hardly any motorable federal highway in the Southeast. For me, this bickering for sharing of positions is an elite game for their personal rather than national considerations.  What the ordinary Nigerians want are institutionalised processes to guarantee their security and prosperity. They want services and don’t care who gives it to them.  Our federal cabinet is nothing but a miniature United Nations (UN) whereby each minister represents his or her state but no one represents Nigeria. At this critical crisis moment, perhaps what Nigeria needs is something akin to selecting the best 11 for our national football team: no one cares which state or zone they come from; everyone wants Nigeria to come home with the cup.

     

      Talking about positions in the government, there are rumours in town, especially on social media and even in some newspapers that you are being tipped to serve in the cabinet of the current government.  Are you likely to serve in the government or am I speaking with the prospective finance minister as speculated?

     Nigerians and their rumours! I am glad you said they are rumours and such rumours are normal. For sure, I wish the new government success and for the sake of Nigeria, everyone must contribute to assist President Buhari succeed. I will contribute in whatever way I can. However, everyone can’t sit in government in order to serve. Some will be there on full-time basis, others can contribute from outside.  For me personally, and at this point in time, I am not disposed or available for full-time public service now; perhaps in the future, it could happen, but not now. For now, my hands are full with several other experiments I am involved with (especially abroad) in the private sector, charity, think-tanks, and the international community. I am part of a major initiative in Africa’s mining and solid minerals sector, and this takes me through several African countries, etc. I am having great fun exploring totally new vistas of opportunity that are central to Africa’s great leap in the 21st century. I read that President Buhari will give priority to solid minerals. We can provide free advisory services and perhaps assist to mobilise investment in the sector or in any other areas if our advice is needed. In effect, there are several ways we can assist the government to succeed but not necessarily to take up full-time appointment. No, not now!

     

    So, who and who would you recommendto be part of the best 11 in the cabinet?

    There are many eminent Nigerians who are not only bold, critical thinkers but also with high execution capacity that the president can choose from. I wish him and his team good luck.

     

     Do you agree with the suggestion of the current CBN governor, Godwin Emefiele, that Nigeria should sell off its oil stakes and retain say, 25 per cent  only?

    I won’t comment on it in detail until I read the study. From what is reported in the newspapers so far, I will surely have many questions and I have hinted the governor on this.

     

    Some CBN staff are currently being tried for alleged fraud regarding circulation of old notes, and the Economic and Financial Crimes (EFCC) says this has been on for years – apparently more people may have been involved. Were you able to deal with that kind of fraud when you were in charge?

    First and foremost, I can’t imagine how such a fraud could be executed successfully given the architecture of controls and security at the CBN. Such would require the collusion of tens of persons from different departments and agencies, including law enforcement agencies and commercial banks. It is very unlikely to happen without someone blowing the whistle or leakage of information. I am particularly happy therefore that it was the CBN that discovered the fraud and reported to the law enforcement agencies. This is the important point.

     

    Years after leaving the CBN, give us your assessment of the bank under your successors.

      I still reserve my comments for now.  When I was in office, I made it a policy never to comment on my predecessors, and after I left office, I also insisted on a self-imposed five-year gag order not to comment on my successor. Several times, I was under immense pressure to break it but I thank God that I kept to it. The five-year ban is now over, but it is not yet time to comment.

     

    The National Bureau of Statistics recently came up with a revised methodology for calculating unemployment, with the claim that unemployment now stands at about six per cent. Are you as concerned as many Nigerians who believe that claim is baseless?

     Integrity of our national statistics is a very serious issue. I don’t comment on statistics without serious scrutiny.  Having not had a chance to thoroughly examine the reviewed methodology, I will not comment on its veracity or appropriateness. It is one thing to have a new methodology, it is yet another to have a comprehensive, credible labour market survey. I will need information on these two parts to make informed judgment. Already, the NBS/past government have created the baseline data for the performance evaluation of the Buhari administration in the areas of poverty and unemployment. According to them, unemployment is about six per cent and poverty is about 32 per cent.  If true, then the Buhari government  is challenged to beat these numbers. The government must support NBS to be independent and do its job without interference.

  • Yoruba groups want new constitution

    Atayese, a Yoruba socio-cultural group, has called on the incoming government to draft a new constitution that would take cognisance of the peculiarities of the various ethnic groups.

    The chairman of the group,  Tokunbo Ajasin, made the call yesterday in Ibadan, the Oyo State capital, at a news conference.

    He said while the group had no political affiliation, it however believed that whoever won the presidential election should make the drafting of the new constitution a priority.

    “Our observation since the electioneering campaign began, have more than confirmed our belief that without a new constitution that effectively restructures our federation, we are more or less postponing the apocalypse.”

  • Will national conference produce new Constitution?

    Will national conference produce new Constitution?

    President Goodluck Jonathan, in his Independence Day broadcast, announced the setting up of an Advisory Committee to establish modalities for a national conference aimed at resolving issues that cause friction in the polity.

    The committee, he said, will also design a framework and come up with recommendations as to the form, structure and mechanism of the process.

    He said: “Our administration has taken cognizance of suggestions over the years by well-meaning Nigerians on the need for a national dialogue on the future of our beloved country.

    “When there are issues that constantly stoke tension and bring about friction, it makes perfect sense for the interested parties to come together to discuss.

    “In demonstration of my avowed belief in the positive power of dialogue in charting the way forward, I have decided to set up an Advisory Committee whose mandate is to establish the modalities for a national dialogue or conference.”

    Inaugurating the committee, Jonathan extended the time within which it is to submit its report to six weeks as against the four he announced in his Independence Day address to the nation.

    While the committee will decide the nomenclature for the planned conference, whether it would be called a national dialogue, conversation or conference, there have been serious analyses and debates on the shape of the conference and what should be its powers.

    Last week, Jonathan said the decisions of the conference would be taken to the National Assembly and the Houses of Assembly for ratification and incorporation into the Constitution, stirring a debate.

    While some believe the conference should give Nigeria a new constitution through a referendum, others say its outcome should be subjected to legislative ratification, as Jonathan said.

    The call for national conference has been on for years, especially before and immediately after the annulment of the June 12, 1993 presidential election.

    In 2000, the late human rights crusader, Chief Gani Fawehinmi (SAN), through his political platform, the National Conscience Party (NCP), also called for a sovereign national conference (SNC).

    He said: “The primary duty of the Sovereign National Conference is to address and find solutions to the key problems afflicting Nigeria since 1914 to date.

    “The concern is to remove all obstacles which have prevented the country from establishing political justice, economic justice, social justice, cultural justice, religious justice and to construct a new constitutional frame-work in terms of the system of government-structurally, politically economically, socially, culturally and religiously.”

    On how to convoke the SNC, Fawehinmi said all the governments under the then constitutional dispensation should be preliminarily involved in the process of convoking it.

    He said the President, the Senate President, the Speaker of House of Representatives, all the 36 governors and the 36 Speakers must meet jointly to set up the SNC Planning Committee.

    Fawehinmi further suggested that the national and state assemblies should promulgate laws in support of the SNC so that fresh elections would be held at the expiration of the tenure of the government in 2003 on the basis of the Constitution that would be drawn up by the SNC and subjected to a referendum of the people.

    Fawhinmi’s demands were not met, but long before his call, a form of conference between ethnic nationalities that make up Nigeria was held in 1950 when delegates from the North and the South met in Ibadan.

    The 1950 Ibadan General Conference gave birth to federalism, with the regional leaders agreeing to the establishment of a federal system that allowed each of the three regions – North, West, and East – develop at their pace.

    In 1953, a constitutional conference was convened in London and it led to a federal constitution – Lyttleton Constitution – which gave the regions significant autonomy.

    Again in 1957, a constitutional conference was held in London, which prepared the country for independence. There was also the Constituent Assembly of 1978 which gave birth to the 1979 Constitution and the presidential system of government.

    Today, Nigeria is faced with a myriad of challenges. There have been calls for true federalism and equitable distribution of resources. The country’s foundations have been shaken by insurgency, while political divisions have eroded the foundations of unity.

    While the state of affairs make a conference necessary, should it lead to the production of a new Constitution? This is where opinions differ.

     

    The arguments for a new Constitution

    Leading the argument that the conference should produce a new Constitution is eminent lawyer and scholar Prof Itsay Sagay (SAN). He believes that anything to the contrary will not reflect the true wishes of the people.

    He said: “We’re talking of a conference which will result in a new Constitution, which will then be approved by this country by plebiscite, by referendum, so that it becomes a Constitution made by Nigerian people.

    “What we’re saying is that this cannot be a proposal for the amendment of the Constitution. So, in my view, either the President doesn’t understand what he is doing by convoking a conference, or he’s deliberately putting poison into the process to kill it from the beginning.

    “To say you’re taking it to the National Assembly, which doesn’t have the capacity or the jurisdiction or the authority to make a new Constitution, is to say you want to kill it. The House has a vested interest in the status quo.

    “They’re the people who are going to try and amend and mutilate and destroy anything that people would have taken all the trouble to make.

    “This National Assembly has been there since 1999. What has it achieved? Just promotion of self-interest in all its processes of constitution amendment – amendments that are meaningless and totally useless.

    “What we’re talking about now is wholesale, new Constitution, which only the people themselves can make. Any reference to the National Assembly is an attempt to kill the conference before it takes off. So, it’s lack of sincerity or ignorance. It’s one or the other.”

    Activist-lawyer Bamidele Aturu agrees with Sagay. His position is that the National Assembly should not make any input in the conference report.

    He added that the people must vote on the outcome of the conference in a referendum.

    “Many people have said, and this is the point we make, that for you to do a national conference as opposed to just constitution amendment, the people of Nigeria must ratify or endorse resolutions of the conference.

    “If that does not happen, then the whole thing is a waste of time. This falls far short of what Nigerians expect or deserve. Many people will now be right to say that it’s just a political gimmick.”

    University of Lagos law lecturer Mr Wahab Shittu also strongly believes that the conference should give Nigeria a new Constitution.

    He said: “If we want to be futuristic, if what we’re considering is a document that will affect the lives of present and future generations of Nigerians, then we should not be afraid to start on a clean slate, which is technically referred to as tabularasa.

    “If we want to start on a clean slate, and we take the view that even the National Assembly as presently constituted may be tampered with by the outcome of the conference – because we’re talking of trying to evolve a brand new Constitution, where we’ll be discussing the appropriate political structure, the appropriate constitutional framework, all issues that bind us together as a people, the outcome of such a deliberation should be ratified by the people in a referendum or a plebiscite.

    “It should not be ratified by a National Assembly whose existence and origin is doubtful. We might even decide to say that we do not want the National Assembly as presently constituted. Nigerians would decide that – what kind of National Assembly they want, what form of Federal structure we want.”

    Shittu said the National Assembly should make no input into the conference.

    His words: “If we now allow that (the conference report) to be interfered with by the National Assembly, you’re indirectly taking away from the people the sovereignty which should belong to them.”

    On arguments that since the 1999 Constitution has no provision for a referendum, one cannot be conducted, Shittu said it did not matter, as power belongs to the people.

    “What we’re saying is that the Constitution as it stands at present will be jettisoned by the conference. That’s why I proceeded by saying that we should start on a clean slate. It’s no use panel-beating a broken down vehicle.

    “That Constitution that we operate does not belong to you and I. It’s something that is foisted on us by the military. This conference presents an opportunity to now engage all issues under the sun, including the Constitution, in a holistic discussion.

    “I believe that all the existing sovereign authorities should step aside and allow the people to evolve a Constitutional arrangement of their choice.

    “Allowing the National Assembly to play a role is like trying to take away from the people the sovereignty which should lie with them. And then that will defeat the entire purpose of the exercise.

    “The convening authority of this conference is not the President or the National Assembly. It’s the people of Nigeria. Once we have been given the opportunity to dialogue, to engage, we should seize the moment as the Nigerian people and then all other things – the conference discussions, the outcome, the legal framework, the agenda – must be decided by the Nigerian people,” Shittu said.

     

    Arguments against a new Constitution

    Professor of law Senator Oserheimen Osunbor, who also served as Edo State Governor, believes the conference cannot produce a new Constitution. He said any such thing would not only be unconstitutional, but will take Nigeria backward.

    He told The Nation: “First of all, we must learn as Nigerians to do whatever we want to do in accordance with the rule of law and the Constitution. Whatever we do must have its basis and legitimacy on the Constitution. The answer as to what will be the final process on the outcome of the national conference must be related to what the Constitution says.

    “As of now, there is no provision in our laws, including the Constitution requiring a referendum for the purpose of making or amending a Constitution. The only provision is respect of making or amending the Constitution is Section 9 of it, which vests power in the National Assembly subject to approval by not less than two-thirds of the states of the federation.

    “So, on the basis of existing law, the outcome cannot be presented to a referendum. Even if you do, it will be of no effect, because there is no law in place that will validate it; which means that the only recourse is to send whatever is the outcome of the dialogue to the National Assembly, and thereafter, for concurrence or approval by the state houses of Assembly. Anything outside of this does not have any legitimate basis in our law and in our Constitution.”

    On claims that the Constitution is a product of the military, Osunbor said those making such assertions could as well demand the repudiation of everything the military bequeathed to Nigeria.

    His words: “There are a lot of things in Nigeria today that are a product of the military. Even the democracy that we have is a product of the military. Olusegun Obasanjo, who was elected President in 1999 came in through the process of a transition programme that was initiated by the military. At his inauguration, the 1999 Constitution was proclaimed.

    “Every state and local government of the federation is a product of the military, apart from mid-west state that was the product of referendum. Many of the laws of the country, including the Land Use Act are products of the military.

    “So, if people want us to abrogate products of the military, what they’re actually advocating is that all the laws that were passed by the military should be abrogated; all the democratic institutions introduced by the military, including the current democracy should be abrogated, because it was a product of the military.

    “All states and local governments, with the exception of Edo and Delta states should be abrogated, because all the others are products of the military. I don’t think that that argument makes sense to you. It doesn’t make sense to me and I don’t think it should make sense to Nigerians.”

    Osunbor said military government had legitimacy, and that the Constitution, though imperfect, could be improved through amendments.

    “It is a fact of history that the military were there, and Nigerians conferred legitimacy on the military by accepting them. Some of the people who are deriding the military today served as ministers under military regimes. Many universities were established by the military. So, we cannot deny the facts of history.

    “People should allow Nigeria to march forward. Let us not continue to drag ourselves back. Let us not continue making fresh starts over and over again. The rest of the world has left Nigeria behind, because for too long, we have been starting and stopping and starting afresh over and over again. I think enough of that is enough.

    “Let us make a success of what we have. It is not perfect at all. The 1999 Constitution is not perfect. Section 9 admits that there will be rooms for improvement by way of alterations or amendments in future,” Osunbor said.

    According to him, no Constitution or human institution is perfect. He called on Nigerians to remain patient rather than discard the existing statute book.

    “The United States Constitution has been amended 27 times. The South African Constitution has been amended 17 times, so why can’t we exercise patience and whatever imperfections or flaws there are in our Constitution can be remedied by way of alterations or amendments, rather than a brand new Constitution.

    “If you say you’re not happy with the existing Constitution, you want a brand new one, 10 years from now, the new leaders of members of the National Assembly at that time will again say: ‘Remove the 2013 or 2014 Constitution and let’s start with a brand new Constitution.’ There will be no end to it.

    “We already have a Constitution in place. Anything short of a revolution, which we do not pray for, that Constitution will remain in force.

    “It is not perfect, but the onus is on us to try and remove those imperfections and make it work better for the people of Nigeria,” Osunbor said.

    A professor of law and former Abia State Attorney-General, Awah Kalu (SAN), said there is no way any form of amendment of the Constitution can take place without recourse to the National Assembly.

    He said: “There is no way that the outcome of the conference will not be sent to the National Assembly, because if you look at the definition in Section 9 of the Constitution, which talks about alteration of the Constitution, if legally interpreted, it means that alteration will include even a completely new Constitution.

    “In law, if you want to amend, it includes the substitution for what is existing. So, if you look at that Section 9, you will see that it is the National Assembly that has the power to alter the Constitution, which means that if the influence is external, as in the Conference now – a body that produces, the best they can do is to produce a draft Constitution, and that will go to the National Assembly.

    “Once the National Assembly adopts it, then it will come back to the President for his assent. I don’t see any way around the final product going to the National Assembly.”

    A constitutional lawyer, Mr Sebastine Hon (SAN), said President Jonathan was right. “The President is not wrong to have resolved to push the result of the conference to the National Assembly.

    “The law-making powers of the federation are vested in the National Assembly. When it comes to amendment of most sections of the Constitution, they share those powers with state houses of Assembly.

    “Except we’re saying there is no National Assembly or legislature in place, those advocating that the conference should fashion out a Constitution on its own, I think, with due respect, are in grave error. We have a legislature in place, and if anything comes out of the conference, it needs to go to them for ratification.

    “We elected them. They are our representatives. And we have a Constitution in place which has been operated for the past 13 years. So, there’s no way we can now begin to say that somebody or a body unknown to the Constitution is fashioning out a new Constitution without the input of the National Assembly. I think it’s dexterous on the part of the President to have resolved to do that,” Hon said.

    The national conference committee report will be ready by second week of November.

    The committee’s terms of reference include to consult expeditiously with all relevant stakeholders with a view to drawing up a feasible agenda for the proposed national dialogue/conference, to make recommendations to government on structure and modalities for the proposed national dialogue/conference, and to make recommendations to government on how representation of various interest groups at the national dialogue/conference will be determined.

    It is also to advise on a timeframe for the national dialogue/conference, advise government on a legal framework for the national dialogue/conference, advise government on legal procedures and options for integrating decisions and outcomes of the national dialogue/ conference into the constitution and laws of the nation, and to advise government on any other matters that may be related or incidental to the proposed national dialogue/conference.

    Going by the terms of reference, Nigerians will know whether the conference will indeed produce a brand new Constitution when the committee’s report is released.