Constitutional reform vs constitutional rewriting

By Wale Okunniyi

There exists a grave conceptual and legal dissonance in conflating constitutional reform with constitutional rewriting. Reform is cosmetic; rewriting is foundational. The former merely plasters the gaping cracks of a collapsing edifice. The latter reconstructs its very foundation. Nigeria’s current approach has been that of tentative and timid reforms. Reforms through amendments involve mere tinkering with clauses, altering sections, inserting or deleting subsections—all within the same defective legal framework. This is akin to merely repainting a termite-ridden house while ignoring the need to first fumigate and wholly rebuild or merely cutting off the branches of a tree threatening the foundations of a house, rather than uprooting it completely.

Rewriting, on the other hand, is a revolutionary act—peaceful, yet radical. It is negotiated. It requires a complete break from the past;a tabula rasa; a fresh convening of the people, and a new social contract that reflects the genuine aspirations of today’s Nigerians, not those of 1998 military oligarch. Countries like South Africa, Kenya and some others have walked this noble path through convocation of Constituent Assemblies participation in national referenda. Why not Nigeria?

To continue operating the 1999 Constitution is to perpetuate a fraud—a self-deceit that we live under democracy when in fact we are governed by relics of khaki rule. The National Assembly must embrace its transitional role and work with civil society, the judiciary, the executive and all Nigerian stakeholders to midwife—not manufacture—a new constitutional dawn.

New referendum-based constitutions

The world is replete with nations that emerged from constitutional darkness into the light of participatory democracy and popular governance. Some examples will suffice here to advance this point. Kenya, in 2010, rose from the ashes of electoral violence to birth a new people-oriented Constitution through a referendum. The Kenyan model was not merely legal—it was moral. It sought to heal, not just to rule. South Africa’s 1996 Constitution is another golden standard: a document forged through exhaustive public consultations, grassroots submissions, and national soul-searching, culminating in a powerful symbol of unity post-apartheid.

Ghana’s 1992 Constitution also passed through a national referendum, marking the country’s rebirth after years of military interregnum. In 2022, Chile attempted a similar feat by proposing a new Constitution through a popularly elected Constituent Assembly. Although that version was rejected in a referendum, the process itself showcased the democratic principle: the people must be heard, not herded; their will must prevail, not discarded.

In Iran, a new Islamic Republic Constitution was birthed in 1979 after a 99.5 percent referendum of the Iranian people. A people’s referendum in Bangladesh in 1991reintroduced a parliamentary system of government, abolished the office of the Vice President and provided that the President must be elected by the Parliament. Morocco held a referendum on 1st July, 2011, for constitutional reforms in response to widespread protests. Egypt subjected its new Constitution to a referendum in 2012. The Eritrean people in 1994 carried out a referendum which gave the people a “sense of ownership of the Constitution”. Tunisia, following a revolution and months of protests, set up a Constituent Assembly that drafted a new Constitution on 26th January, 2014, after a people’s referendum. Iraq, on October 15, 2005, carried out a referendum to adopt her new Constitution.

The United States of America (after whom Nigeria’s Constitution is modelled) held a constitutional convention in Philadelphia, Pennsylvania, between May 25 and September 17, 1787, to birth a new Constitution and have a “more perfect union”. Of the 55 Delegates that attended the Convention presided over by George Washington (who later became the first American President), 39 delegates signed a new Constitution after a people’s referendum. Broad outlines of a new Constitution were proposed, debated and agreed upon by these delegates that represented the autonomous confederates. It was this initiative that brought about America’s federal system of government; Executive Presidency; Republicanism; Separation of Powers (a doctrine earlier popularized in 1748 by Baron de Montesquieu, a great French philosopher); and judicial review. It witnesses inclusive inputs by great Federalists such as George Washington, Alexander Hamilton, James Madison, John Jay, John Adams and John Marshal. Since 1789 when the Constitution birthed ( 236 whole years ago),has just 7,591 words with only 27 amendments. The reason it has withstood its stability and acceptability is because it emanated directly from the will of the people and so enjoys their legitimacy and respectability. Why not Nigeria, I ask?

 What unites the above examples is one common thread-referendum. This is the power of the people expressed directly; not elected, selected or appointed through legislative surrogates. The people must see their fingerprint on the agreed charter that governs them. That is the essence of legitimacy through a yes-or-no referendum on the people’s grundnorm. Referendum makes a Constitution autochthonous, homegrown, and people-owned.

Lessons for Nigeria

Nigeria must jettison the illusion that piecemeal amendments can yield a legitimate, people’s Constitution. We must learn from America, our African and Latin American siblings that the legitimacy of a Constitution lies not in its legal grammar but in its popular genesis. A new Nigerian Constitution must be drafted by a Constituent Assembly comprising of Representatives of the people elected on a non-political or partisan basis—civil society, labour, youth, men and women’s groups, professionals, students, traditional institutions, faith-based organizations, persons living with disabilities and other stakeholders. It must then be subjected to a national referendum where every citizen, from the creeks of Yenagoa to the plains of Sokoto, from the savannah to the mangrove swamps, etc, casts a vote.

This process is not just a legal imperative—it is a national therapy. A referendum-based Constitution would erase the ghost of military rule and birth a fresh beginning and identity for Nigeria. It would convert cynical citizens into patriotic stakeholders. It would replace imposed obedience with inspired allegiance.

The time has come. Let the eagle soar again—not on colonial graves; not on military Decrees and diktats; but on the wings of popular consent of the people.

The Patriots’ patriotic blueprint

A Constitution must not only be written—it must be born. And like all legitimate births, it must pass through the womb of collective consent. The Patriots, a formidable assembly of distinguished elder statesmen and women, jurists, constitutional scholars, professionals, traditional and religious leaders and public intellectuals, have for years championed the cause of a People’s Constitution, not by revolution but by resolution; not with bayonets but with ballots; not by Decrees but through dialogue and democratic deliberation.

Their thesis is clear: no nation can build peace on the foundation of falsehood or silence, and no union can last where one part feels conscripted rather than convened. In the interest of national salvation—not sentiments—they propose a blueprint for constitutional rebirth anchored on Nigeria’s plurality.

•Comrade Okunniyi is the secretary of The Patriots.

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