NASS Can Enact A New Constitution (2)

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.

Conclusion

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.

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.

Conclusion

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.