NASS has the powers to replace the 1999 Constitution (2)

LAST week, I commenced the discussion of this topic by highlighting the background of constitutional enactments and repeals in Nigeria from the period of amalgamation in 1914 till date. As I noted, the present 1999 Constitution is a product of military decree which, does not means, represent the wish of Nigerians; and therefore, there is an urgent need for a new constitution which will echo the voices of Nigerians and permit the different nation-states to develop at their respective paces.

The need for a legitimate constitution

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’

The National Assembly Can Replace the 1999 Constitution

As already established, the extant Constitution was enacted without recourse to a constituent assembly to represent the wishes of Nigerians. 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? Expressing the viewpoint that the National Assembly does not have the power to replace the 1999 Constitution, the Deputy Senate-President reportedly noted that:  ‘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.  With respect, the Deputy Senate-President wrongly interpreted the foregoing constitutional provisions to say that the power of the National Assembly is only limited to alterations and amendments, and not a total replacement of the Constitution.

It is, however, inherent in Section ‘9(1) of the 1999 Constitution that the National Assembly has the powers to alter any provision of the Constitution. This provision confers extensive powers on the National Assembly to alter any part of the Constitution which may seem to even prevent a replacement of the Constitution. In this respect it is important to note that the Constitution does not use the word “amend” as stated by the distinguished Senator but rather uses the word “alter”. While the two words may appear similar, they, in my view, have different connotations in the context of Constitutional changes. While an amendment connotes minor changes to the text of a law, an alteration connotes significant changes to it. Thus while “amend” is defined as to “make minor changes to (a text, piece of legislation, etc)…” alter is defined as “change in character or composition, typically in a comparatively small but significant way”. The drafters of the Constitution have in their choice of words, deliberately imbued the National Assembly with the powers not just to make minor changes to the Constitution but to make changes which have the effect of significantly altering not only the character and composition of the document itself but indeed the entity which it seeks to regulate. If this standpoint is held to ne true, and I believe it is, then the point that the National Assembly can bring about a new Constitution can be made from two perspectives namely:

1. It can proceed upon a proactive alteration of the Constitution with the aim of eventually replacing some of the provisions that have held back development of the Country and enacting new provisions which meet the aspirations and yearnings of millions of Nigerians for a new Constitution. While it may be argued that this approach is what the distinguished Senate alluded to the fact remains that most of the alterations made by the National Assembly have been self serving as they have mostly been limited to issues such as the time required for the filing and determination of political cases. Important issues such as devolution of powers to the States have largely been ignored. That this is so is probably due to the fact that most of the changes demanded by Nigerians, such as adoption of a Unicameral legislature and merger of States etc, are not such as are likely to find favour with politician who at the moment benefit the most from the bloated nature of the Nigerian State. 2.It can put in place the process for the making and adoption of a new Constitution by means of a National Conference and referendum by the populace to adopt the work and recommendations of the Conference.

Whichever is adopted, 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 canmakes 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.

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.

To be continued…..

AARE AFE BABALOLA, OFR, CON, SAN, FCIArb, FNIALS, LLD.

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