National Conference and the smuggled new constitution

President Goodluck Jonathan and Justice Legbo Kutigi
President Goodluck Jonathan and Justice Legbo Kutigi

By Ochiaka Ugwu

The National conference was inaugurated by President Goodluck Jonathan to the admiration of most Nigerians who saw it as an opportunity to correct the flaws in our constitution which was handed over by the military. Citizens have 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 Jonathan’s move was seen as a major milestone.

Civil society groups have always stated that a National Conference is a vital requirement for a People’s Constitution for Nigeria. Their demands have always been straight forward and simple, that Nigeria will benefit from a robust discussion on how to coexist as an entity. To them, relevant National Questions need be addressed, if we are to build a new Spirit of commitment to Nation and service to motherland.

With the resumption of plenary on Monday after many weeks of recess by delegates to debate on the final report of the Conference as produced by the Secretariat, indications have emerged that crisis looms as some northern delegates may have concluded plans to frustrate moves to amend some sections of the 1999 Constitution which will automatically made it a brand new one.

The Conference Secretariat had already prepared a draft Constitution to be sent to the National Assembly and distributed draft copy of the constitution and a bill to all the delegates, which the northern delegates were not comfortable with and had planned to ensure that it did not sail through.

Speaking on the new development, Northern Delegates Forum (NDF) had in a press conference in Abuja yesterday accused the conference of planning a brand new constitution that will negate the 1999 constitution.

While addressing newsmen, the Chairman of the Forum and a former Inspector-General of Police, Alhaji Ibrahim Commassie noted that the first indication that there was going to be problem was on Monday 30th June, 2014, when a front page report in a national daily (Daily Trust) alleged that a member of the leadership of the conference had been lobbying members of the Northern Delegation to be able to smuggle in a “new constitution” at the conference.

Continuing, the Katsina State born former Police Chief said a delegate drew the attention of the Conference to the publication under MATTERS OF NATIONAL IMPORTANCE:  and it was demanded that the Leadership should make a categorical statement on the issue.

It was also alleged that Justice Idris Kutigi led 2014 National Conference plans to forward a Bill to both the Senate and the House of Representatives to alter some sections of the 1999 Constitution aimed at correcting what it termed some anomalies in the said constitution and make it more people oriented.

Kutigi in the Bill entitled, An Act to further alter the Provision of the Constitution of the Federal Republic of Nigeria 1999 (with the first, second and third Alterations, and for Related Matters 2014, will go the National Assembly as an Executive Bill.

They also faulted the way the draft bill was tagged a draft Constitution rather than proposal for the alteration of the 1999 Constitution of the Federal Republic of Nigeria against the backdrop that the conference has no such mandate to write a constitution, but to advise the President on areas that could be changed in the constitution.

According to Commassie, “You are aware, by now, of the surprise, shock and disappointment with which not only delegates to the conference, but many patriotic Nigerians, have reacted to news of the sudden appearance of a “New Draft Constitution 2014”, among other documents distributed to delegates, when we resumed at plenary, last Monday, August, 11, 2014.

“We, Northern Delegates to the Conference wish to assure patriotic Nigerians, and all lovers of democracy, that we are neither privy to, nor were we accessory to the emergence of the controversial “New Draft Constitution 2014”. We, therefore, unequivocally disown it, and emphatically disassociate ourselves from it. Accordingly, we will have nothing to do with it.

Commassie noted that delegates to the conference were not elected, and therefore lack both legal and moral authority to draft a new constitution for the Nigerian Federation, saying they were constituted to serve as an ad hoc advisory mechanism for to The President, as representatives of   broad interests across the federation, and cannot, therefore, legally arrogate themselves the far-reaching function of making a “new” constitution for the Federal Republic of Nigeria. That can only be done by an appropriately constituted Constituent Assembly.

Although, it is a reality that from independence in 1960 to 1999 Nigeria has changed and operated more than four new Constitutions. The processes of abrogating and repealing old Constitutions and the processes of drafting new Constitutions and enacting laws which give force of law to the new Constitutions in Nigeria are well known, the practice and precedence thereto are fully documented. The powers to take necessary actions in each of the processes thereto are accordingly provided for in the extant Constitution and other laws.

It has further been postulated by some constitutional historians that, the constitution to be agreed to by the national conference should pass through a referendum to become law, while some have said that such postulation would be a recipe for legal confusion and illegality. They noted that referendum is unknown to laws, unknown to precedents and practices and unknown to extant Constitution and that people can only follow their laws, precedents and practices.

They further argued that there is no extant law regulating the promulgation or enactment of a brand new constitution or abrogating an existing one in Nigeria. Given this lacuna, they went back memory lane to establish precedents and practices in these regards as a guide.

Starting from 1989 Constitution, they said it was promulgated into law by the amendment of the Decree that promulgated the 1979 Constitution and replacement of the Scheduled thereto which contained the old Constitution with a new Schedule which contained the new Constitution. The 1999 Constitution was promulgated into law by the repeal of the 1979 Constitution (promulgation) Decree and replacement of same with a new Decree 24 of 1999 which promulgated the 1999 constitution into law. The above precedents have been and remained the established extant procedure and practice of abrogating extant old constitutions and giving force of law a new one.

Moreover, a Constitutional lawyer and a member of the 1979 Constituent Assembly, Prof. Ben Nwabueze, recently said that 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, “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.

The Anambra State born legal luminary said the National conference was not set up by any law enacted by the National Assembly, authorising the convocation and prescribing the functions. He maintained that the conference was established entirely by virtue of the President’s inherent powers under Section 5 of the 1999 Constitution and cannot adopt a constitution binding on Nigerians as law. He noted that the conference as established by the President has no power to adopt a constitution that will be binding on all Nigerians as the supreme law of the country.

On Referendum, Nwabueze also said it is not right to take decisions made by this national conference to a referendum as it has no power to adopt a constitution. “We operate a legal order and that legal order is constituted by the 1999 Constitution, by the principle of the rule of law, by legislative authority, and executive authority. With the 1999 Constitution still there as the basis of the legal order, you can’t have a referendum not authorised by law enacted by the legislative authority. There is no question of a referendum” he said.

A former National Publicity Secretary of the Arewa Consultative Forum (ACF) and spokesman for the Northern Delegates Forum (NDF), Mr Anthony Sani believed that the issue of new constitution should be left to the political party, so that when voted into power they can start the process. He said the conference has no business with new constitution precisely because the delegates were not elected.

Another conferee and a constitutional lawyer, Chief Mike Ozekhome, however, differed from others by saying that a new constitution was imperative and should emanate from the people. He concluded by saying it is the constitution that gives birth to National Assembly and not the other way round.

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