New Constitution: A Case for Referendum

Constitutional amendment, or the redrawing of a new constitution is certainly not a new phenomenon. The debate as to whether our 1999 Constitution should be completely jettisoned for a new one, or whether it should simply be amended, has been ongoing for a while now. Last week, I read with keen interest, the opinions of Dele Adesina, SAN, Bolaji Ayorinde, SAN, Ahuraka Yusuf Isah and Professor Auwalu Yadudu in their discourse in this publication titled, “Nigerian Constitution: New or Reviewed?”. While Mr Adesina supports the drawing of an entirely new Constitution and Mr Ayorinde further seeks the reintroduction of State Constitutions, Prof Yadudu seems to prefer the option of constitutional amendments. Afenifere, the Pan-Yoruba Group, through its leader, Chief Ayo Adebanjo, has called for Nigeria to revert to the 1963 Republican Constitution or similar, while others have called for an amendment or redrawing of the extant Constitution to include the resolutions of the 2014 National Conference. In a television interview I watched recently, the Deputy Senate President, Senator Ovie Omo-Agege stated that there is no provision for a new Constitution in the present one, only amendments by virtue of Section 9 of the 1999 Constitution. Naturally, I could go into an academic argument with the Deputy Senate President, to say that his assertion is not strictly true, since Section 9(1) allows the alteration of any section of the Constitution, in which case we could amend all the sections which amounts to the redrawing of a new document!

A New or Amended Constitution for Nigeria?

The reasons for the desire for a change in the constitutional order, should be the determinant of whether a constitution should be amended or totally redrawn. If it is simply to make a few changes, or to update the existing document to reflect some of the changes in the society, or include a point which may have been previously overlooked, then a simple amendment may be required. In short, the essence of constitutional amendment simpliciter, is to address anomalies in specific provisions.

In the 22 years of the Fourth Republic, issues which were not envisaged by the 1999 Constitution have arisen. For instance, the Constitution does not provide for inconclusive elections in the case where a candidate has already fulfilled the conditions set by the Constitution to be declared as the winner of an elections, as was the case in the 2019 Osun State Gubernatorial election where Senator Ademola Adeleke, having already fulfilled the conditions to be declared as Governor as per Section 179 of the Constitution, was not so declared by INEC, as the election was declared inconclusive and a rerun ordered. It is my considered opinion that, whatever the reason for INEC’s declaration of inconclusivity, once Senator Adeleke had fulfilled the Section 179 conditions, INEC was constrained to declare him as the winner of the election, as the said provisions of Section 179 do not accommodate a scenario of inconclusive elections when the conditions of Section 179 have been met, and inclusion of this new concept cannot be done by means of anything else but a constitutional amendment, not even by statute, let alone the decisions or actions of a Government agency.

Again, the Constitution did not anticipate a situation in which the death of a candidate occurs before he/she is declared as the winner of an election, as in the case of Prince Abubakar Audu of Kogi State. Anomalies like this can be rectified, by simply making constitutional amendments to the various provisions dealing with elections to the various political positions.

But, where an entirely new constitutional order is to be established, and this obviously involves more than specific constitutional provisions, whether to create a more equitable society, or to change the existing political order, or maybe the need for reform has arisen as a result of internal conflict, then a new Constitution will more than likely be required, with the retention of only the useful or relevant parts of the previous Constitution in the new one.

Why do Nigerians Desire a Change in the Constitutional Order?

At this juncture, the pertinent question to ask therefore, is why Nigerians desire changes in the 1999 Constitution? Is it for some minor or major reasons? This sounds like a rhetorical question, because it is obvious that it is for major reasons – all the aforementioned elements which I have just cited, that may necessitate the drawing of a brand new Constitution, exist in our country today.

Aside from the numerous issues which the 1999 Constitution did not forsee, and therefore, does not deal with, and those which have arisen freshly in the last 22 years, there is also inequity and inequality in the grundnorm and our society. At the risk of sounding like a broken record, the fact that the South East zone has the least amount of States, or that Kano (having more than double the number Lagos has), Katsina, Oyo, Osun, Akwa Ibom and others have more local governments than Lagos which has a larger population than them all, are prime examples of inequity and inequality. Some are clamouring for scrapping the States and having the Zones/Regions instead; others, a change in our Legislative architecture, because the current bi-cameral National Assembly is much too expensive to operate. More importantly, the 1999 Constitution is a Unitary Constitution, and not one that reflects true Federalism, yet we refer to ourselves as the Federal Republic of Nigeria. Of the greatest importance however, is the fact that the requisite participation of all parts of our society in the drawing of the 1999 Constitution is absent, since the Constitution is actually Military Decree No. 24 of 5th May, 1999, with the false claim that the Nigerian people firmly resolved to provide it, superimposed on the document just to fulfil all righteousness. The list of inadequacies of the 1999 Constitution is almost endless, as those which I have cited are just a tip of the iceberg.

It is crystal clear that, from the foregoing, the 1999 Constitution requires more than just constitutional amendments, because apart from making it equitable, the people must participate in the constitution building process in order to achieve a successful document, and the whole political order must be changed to reflect Federalism which is the most suitable system for a heterogeneous nation like ours, as opposed to the Unitarianism which we are presently practicing.

Reasons for People’s Participation in Constitution Making

Several reasons have been given for why people’s participation in the constitution building process is crucial – it can increase the level of democracy; it helps the people become more knowledgeable about democracy and governance in general; it creates trust and confers legitimacy on the document; and especially where there has been conflict within a country which has necessitated the constitution building process or change in political order (as in the case of Nigeria), the inclusion/participation of the people from the various divides will assist the process of understanding, healing and reconciliation.

Means of Securing the People’s Participation

There are different levels of participation in the constitution building process, ranging from False Participation which we had for the 1999 Constitution, in which it was the military that created the document to the exclusion of all others, and final authority rested with the military regime; to Substantial Participation, in which all segments of society, including civil society organisations etc (except those who choose to boycott the process) participate, and final authority is vested in the people by means of a referendum (and the other types of participation that lie between these two extremes).

How then should we secure the participation of the Nigerian people in the constitution building process to create a more acceptable document, since it is obvious that a substantial number of Nigerians are not happy with what obtains presently?

I must state that I disagree with Prof Yadudu’s submission, that we cannot have a referendum in order to effect the much needed changes that the 1999 Constitution requires, until the document is amended to provide for referendum, and an enabling statute enacted to define the questions which can be referred for resolution by means of a referendum.

It is a fact that, Section 8(1)(b) & (3)(b) of the Constitution seems to be the only provision in the grundnorm that expressly provides for a referendum of the people of an area who are demanding for the creation of a new State or Local Government Area, respectively. But, the truth of the matter is that, the provisions for a referendum (at least, Popular and Advisory Referenda) can be implied from certain provisions of the Constitution, starting from Section 14(2)(c) of the Constitution. How will a firm resolution of the people, as stated in the Constitution’s Preamble be achieved, without the people’s participation? How will sovereignty belong to the people (Section 14(2)(a) of the Constitution)? These provisions, to me, imply that there has to be some mechanism which will sample the people’s opinions and wants, and some of the mechanisms known for achieving these objectives include a combination, but are not limited to public hearing, plebiscite, referendum, constituent assembly and sovereign national conference, the difference between the referendum and some of the other mechanisms being that, the outcome of a referendum is binding.

And, even if these provisions were not included in the Constitution, or some argue that they do not translate to providing for referendum, if we agree that the 1999 Constitution is a faulty document (which most do), and that Nigeria should be restructured to reflect a new political order – ‘True Federalism’ etc, why must we be constrained to rely on or be confined to the 1999 Constitution’s inadequate and unclear provisions, in a matter that is so crucial to creating a better and more acceptable Constitution for Nigerians? Why should we rely on a document which was prepared by a military dictatorship, the evidence of this authoritarianism being the deliberate exclusion of the will of the people in its production, thereby resulting in its rejection by many, and then seek to use this inadequacy (which is the antithesis of democracy) and this imperfect document, as our Bible to create a new document? I fail to see the sense or logic in this. Surely, it is absurd for us to be prevented from doing the right thing (secure the participation of the people, which is the first step to creating a better Constitution and promoting true democracy), because of a constitutional malefaction which sought to surreptitiously perpetuate dictatorship by excluding the people.

Practical Steps

What prevents NASS from organising a nationwide campaign to create public awareness, by using its members, instructing them to go back to their constituencies to conduct townhall meetings where, in their native languages, all the major issues which have arisen for debate in the country for the past few years, and which will likely form the subject-matter of a referendum will be explained to the people so that they can be better informed in order to vote consciously at the referendum? What prevents INEC from organising the referendum using the Voter’s register, where Nigerians can vote on the many questions which, by now, we are all too familiar with? In the past I had thought that a Sovereign National Conference should precede the referendum, but on second thoughts, I think it should be the other way round. The outcome of the referendum will then be the basis for the debate of a predominantly elected-members National Conference, on how to adapt the will of majority of Nigerians into a brand new Constitution. My dear readers, kindly, share your opinion on this matter. Thank you.