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Can the National Conference provide legal basis for new constitution?

22 October 2013, 08:38 Olisa Agbakoba

At last, the sovereign authorities have accepted the need for a National Conference. Civil society in Nigeria has always insisted that only the People of Nigeria can authenticate, legitimize and endorse a Constitution to govern their affairs.

Unfortunately, this simple wish was always denied by the colonial, military and even elected government. So President Goodluck Ebele Jonathan’s Independence Declaration is a major milestone.

The Late Aka-Bashorun, my most illustrious predecessor, as President of Nigerian Bar Association, the first to clearly articulate the need for a Sovereign National Conference, as long ago as the 1980s, must be rejoicing in his grave. Civil society has always stated that a National Conference is a vital requirement for a People’s Constitution for Nigeria.

Civil society’s demands have always been straight forward and simple – that Nigeria will benefit from a robust discussion on two vital questions posed by Late Bola Ige, when he said “…there are two basic questions that must be answered by all of us Nigerians. One, do we want to remain as one country? Two, if the answer is yes, under what conditions?”

I respectfully suggest that Bola Ige’s questions are well framed as the relevant National Questions we need to address, if we are to build a new Spirit of commitment to Nation and service to motherland.

President Jonathan has charged a committee to frame the issues and nature of participation, and most important the legal basis upon which the outcomes of a National Conference can be enacted into law by the National Assembly.

Civil Society on the other hand has expressed the view that the nature of the conference will necessarily have to be sovereign. I will return to the basis of this request by civil society.

What is important at this stage is the utilizing of the limited platform offered by President Jonathan to engage Nigerians in very robust discussions on the Constitution and without “No-Go” issues.

Even though there are challenges about participation, my suggestion is that participants may be drawn from ethnic nationalities and at least the six basic estates of the realm, namely the Executive, Legislature, Judiciary, Media, Civil society and Organized Business. I have defined civil society in a very broad sense to include NGO’s, religious and traditional institutions and of course labour, youth and women.

I agree with Dr. Tunji Abayomi when he said “Every Constitution is preceded by a debate of terms and consensus on principles.” This  simply means that we have to agree. I think the most important key to a successful National Conference is the structure of government and devolution of powers.

It is obvious that Nigeria is a very diverse country. Scholars suggest that federalism is the political system best suited to diverse peoples. If this is agreed at the conference, the corresponding question should be about the structure of the federal system and the scope of powers of the autonomous governments, that is the federal government on the one hand and the state government and even the local government, on the other.

I would readily adopt Dr. Alex Ekueme’s recommendation that the new structure of Nigeria should be based on our six geo-political zones. I would further recommend massive devolution of powers from the Central government to the state governments. This is called the principle of subsidiarity. If we accept this basic conceptual framework, it will then be easy to constitutionalise the political arrangements into a Peoples constitution. 

Now to compensate for the non sovereign nature of the conference, I would like to identify four vital elements that we must keep in mind. They are inclusion, authority, validity and legitimacy.

By inclusion I mean every Nigerian must be allowed to freely speak his mind. By authority I mean that we have to accept that the President and National Assembly are the convening authority. By validity the government has to accept that we the People shall validate the Constitution by Referendum. By legitimacy I mean that our discussions shall not be altered by the government, but shall be final and binding and validated by Nigerians

I now turn to perhaps the most difficult subject of all in this matter of the National Conference. Here is the question- after we agree, how do we bring the discussions into legal force? I think Prof. Ben Nwabueze, SAN, has, as usual, provided a simple and lucid answer.

Prof. Nwabueze reminds us that the National Assembly has two types of legislative powers. First, the National Assembly has legislative power similar to that of any House of Assembly of a State. In this context the National Assembly is just one of three of the branches of the Federal Government. The National Assembly makes law in this field pursuant to its powers contained at Section 4(2) of the Constitution. These are the exclusive and concurrent lists. But the National Assembly has a second legislative power. This is covered by Section 4(1) of the 1999 Constitution. Prof. Nwabueze having noted that “Section 4(1) provides that legislative powers of the Federal Republic of Nigerian shall be vested in the National Assembly,” goes on to say that what is so vested in the National Assembly  therein, is the legislative power, not of the Federal Government, but that of the Federal Republic of Nigeria. The legislative power in this second field is a term wider than the legislative power of the National Assembly as a branch of the Federal Government. In short the National Assembly has dual power to make laws on the one hand as a branch of the Federal Government and on the other hand for the Federal Republic of Nigeria.

The National Assembly is authorized to make laws for the Federal Republic of Nigeria for its peace, order and good government. In this sense, according to Prof. Nwabueze, and I respectfully agree, the entire legislative sovereignty of the Federal Republic of Nigeria is vested in the National Assembly. It is important to state that the legislative power of the National Assembly to make law for the Federal Republic of Nigeria is not limited to matters specified in the exclusive and concurrent list. It includes, Prof Nwabueze says, and pursuant to Section 4(4)(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution." It is in this context that the National Assembly can exercise powers pursuant to section 4(1) to repeal Decree 24 of 1999 which is the legal basis of the 1999 Constitution and replace it with a brand new Constitution. The legal position will be different if the National Assembly is merely altering the Constitution. This is covered by Sections 8 and 9.

Prof. Nwabueze cites the example of what Parliament did in 1963 when it replaced the whole of 1960 Independence Constitution with the Republican Constitution of 1963.  All Parliament did in 1963 was to repeal the Order-in-council, made by the Queen of England providing for the Independence Constitution and replaced it with a brand new Republican Constitution.

Decree 24 is an existing law under Section 315(4) of the 1999 Constitution. So Decree 24, being a law with respect to which the National Assembly has power under Section 4(1) to make law, is deemed to be an Act of the National Assembly and can therefore be repealed.

Prof. Nwabueze says it would be inconceivable and manifestly absurd that there should be an existing law as defined in Section 315(4) which is beyond the power of the legislative authority of the sovereign state of Nigeria to repeal.

So the way I see it is that, assuming we can agree on the content of the Constitution that can work for us, it should be very easy to constitutionalise the agreements reached at the National Conference by invoking the special legislative powers of the National Assembly and enacting those agreements reached into a supreme Constitutional document. If this process is followed, the Constitution as an outcome of the Sovereign will of the People will have the stamp and authority of Nigerians, validated by a referendum before enactment by the National Assembly. Then as Kingsley Moghalu says in his tremendously important book Emerging Africa we can all aspire to a Fundamental Transformational Agenda for Nigeria.

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