The song from Chile •Lessons Nigeria’s rulers need to learn

KUNLE ODEREMI reflects on some similarities between Nigeria and Chile beyond the shared vestiges of military autocracy.

At the bottom of the multifaceted challenges confronting Nigeria is the legitimacy of the existing 1999 Constitution. In spite of the series of efforts to amend the document, the preponderance of stakeholders in the Nigerian project believe the constitution does not represent and reflect the genuine wishes and aspirations of the ethnic nationalities making up the country. Thus, the clarion call by many has been for a new constitution that to be drafted by the people through their representatives.

There is an ongoing constitutional reform in the Latin American country, Chile. About two months ago, Chileans trooped out to kick-start the process ending a prolonged era of lack of constitutional legitimacy in a country of about 17.4 million, comprising 88.9 percent white or non-indigenes, with the rest being an ethnic nationality called Mapuche and other indigenous groups. In a national referendum conducted in the country that consists of 15 regions, the majority of Chileans voted for the writing of a constitution that would replace the one foisted on them by the fistic regime of General Augusto Pinochet. Incumbent President Sebastan Pinera had to succumb to the sustained demand of the people that they could no longer live in an environment of inequality and injustice. Overwhelmed by the comportment displayed by his country during the conduct of the referendum, President Pinera said the exercise marked the “beginning of a path that we must all walk together.”

Reports showed that the referendum was dual structured. The first question was if Chileans wanted a new constitution. The second question bordered on kind of body they prefer should draft the constitution of their dream. No fewer than 79 per cent of the voters in favour that the new constitution be drafted by a body which will be 100 per cent elected by a popular vote rather than one which would have been made up by 50 per cent of members of Chilean Congress.

“Today citizens and democracy have triumphed, today unity has prevailed over division and peace over violence. And this is a triumph for all Chileans who love democracy, unity and peace, without a doubt,” President Pinera enthused. So, on April 11, 2021, Chileans are expected to go to the poll again, this time, to choose the 155 ‘wise men’ to be saddled with that onerous national assignment of drafting a new constitution that the people can own. The timeframe for the assignment is nine months, but with the option of a one-time extension of three months, where necessary. The new constitution will then be put to the Chilean people in another referendum in 2022.

In Nigeria, calls for a constitution that truly captures the essence of the Nigerian federation persist, notwithstanding the subsisting attempt by the ninth National Assembly to review/amend the 1999 Constitution midwifed by the military. The ad hoc committee on Constitution Review held a forum to get further inputs from stakeholders. In an apparent reference to the unending agitations for new constitution and jettisoning of the current document, the ad hoc committee said the National Assembly lacked the power to write a new constitution for the country. Head of the committee and deputy President of the Senate, OvieOmo-Agege counselled Nigerians against deluding themselves that the ninth Assembly had the mandate to produce a new constitution. He premised his argument on the United States presidential model copied by Nigeria, coupled with Sections 8 and 9 of the 1999 Constitution (as amended), which only empowered the legislature with only a constitutional amendment.

Omo-Agege told some visiting stakeholders in the country: “One of the issues you raised is the replacement of the 1999 Constitution. I am not so sure that we as a Parliament have the power to replace the Constitution. 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. What we are mandated to do by law is to look at those provisions and bring them up-to-date with global best practices, especially to the extent that it tallies with the views of the majority of Nigerians. So we are not in a position to replace this Constitution but we can only amend.

“But, like I said, most of the issues you have raised here, like zones replacing states, that’s another euphemism for going back to the regions. We will look into that if that is what majority of our people want. You talked about devolution of powers. The preponderance of views we have received so far is that those 68 items are very wide and need to shed some weight and move them to the Concurrent Legislative List.”

His visitors raised some fundamental issues concerning the seeming defects in the present federal structure and called for a holistic retool. Their suggestions included restructuring of the existing 36-state structure into six zones as federating units, a drastic cut in the Exclusive Legislative List and expansion of the Concurrent Legislative List, as well as reform of the National Assembly to a hybrid presidential and West minster systems, abolition of security votes to be replaced by regular security budget allocations and electoral reforms to ensure a truly independent INEC. Limited immunity for entitled public officers in the executive branch of government, provision for independent candidacy in all elections, creating a consensual balance between meritocracy and federal character, were among the other proposals by the visitors.

Prominent scholars, professionals and statesmen, including the legal luminary, Chief Afe Babalola (SAN) disagreed with the position of deputy Senate president on that the National Assembly was helpless in the demand of the component parts of the country for a truly people’s constitution. According to the senior citizen, that “Laws change to fit changing human circumstances and needs. It is a cardinal principle of human existence that law is made for the man; and not man for the law. Even the Lord Jesus Christ noted, in Mark 2:27 that “The Sabbath was made for man, and not man for the Sabbath”, despite the sacrosanct nature of the Sabbath for the Jews.

He cited various instances in parts of the world and over time to buttress his points on the matter. “This consideration, perhaps, has been the ultimate factor for countries to enact new laws or create an entirely new political structure which conforms to their present-day realities. In the United Kingdom, the Act of Parliament (which is the primary legislation passed by the UK Parliament) permits the conduct of referendums for major constitutional issues, such as Brexit, in which a referendum was conducted in 2016 to determine the withdrawal of the UK from the European Union and the European Atomic Energy Community. A Majority of UK citizens voted in favour of Brexit and despite the daunting process, it eventually came into effect in January 2020 with the passing of the European Union (Withdrawal Agreement) Act, 2020. Likewise, in Senegal, the legislature which was initially bicameral was reformed to become a unicameral legislature when the Senate was abolished in 2012.

The contention of the Deputy Senate President that the National Assembly has no powers to create a new Constitution for Nigeria does not truly reflect the provisions of the Constitution. I believe that under the present Constitution, the National Assembly has the inherent powers to make a new Constitution to govern Nigeria.”

Chief Babalola also believed that the wave of insecurity in Nigeria has a root in the constitutional framework. Relying on his wealth of experience, he recalled that the political stability, economic progression and prosperity of the subsystems in the First Republic were as a result of the kind of constitution that was operational. His word: ”There is a very simple solution to the growing insecurity in the country and that is a new constitution. We need a new constitution where the different nations that were formed together can develop at their own pace. West was doing well during the old constitution, likewise the East and even the North but the one we are using now whose leaders see politics as the only lucrative business. We don’t need transactional leaders anymore, we want transformational leaders as you can see I am transforming this place. In the early years in 1960 people were not earning salaries but allowances and they were doing well but now you see people selling their property to contest election because of money they will get in the office that is not the ideal thing. The solution is a new constitution for the people. We need people who will serve without earning salaries. “

The general secretary of the Council of Yoruba Elders (YEC), Dr Kunle Olajide is among the main advocates of organising  a referendum on the kind of constitution Nigerians are yearning for. He is also among seasoned professionals that believe that it constituted a building block towards restoring confidence and justice if Nigeria must work as a feral entity.

The secretary of the Interim Steering Committee of the Eminent Elders Forum (EEF), Dr Akin Fapounda, also contends that that the ongoing political reforms in Chile should not be ignored by Nigeria if it desired to rediscover itself. He declared: “If we are thus truly desirous of doing better for the present and future generations of Nigerians, it is time we confronted our issues frontally and attempt a new modality devoid of fear for the unknown, as has just been done in by the people of Chile. The subsisting 1999 Constitution has problems, upon which there is almost a universal consensus.”



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