CONSTITUTION AMENDMENT: IS A REFERENDUM REALLY UNCONSTITUTIONAL? BY TOLU OBAMUROH

Published:7 Dec, 2012

The Nigerian democracy is founded on the supremacy of the Constitution. The supremacy of the Constitution in turn rests on the understanding that it emanated from the collective will of the people. The preamble to the 1999 Constitution (as amended) says as much –

“We the people of the Federal Republic of Nigeria
Having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding

And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people

Do hereby make, enact and give to ourselves the following Constitution:..”

The Late Chief FRA Williams SAN lucidly argued that on account of the excerpted provision, the Nigerian Constitution lied against itself because at no time did the people of Nigeria meet to enact the Constitution. The 1999 Constitution was forced on us by the military and by sheer conspiracy of the political elite, it has remained the supreme law of the land.

Having laid this necessary foundation, I turn to the assertion of the amiable Speaker of the House of Representatives, Hon. Aminu Tambuwal and the Senate Majority Leader, Senator Ndoma Egba SAN that the proposition of the Nigerian Bar Association that the 1999 Constitution, which is going through another round of amendment, be subjected to a referendum is unconstitutional.

According to Black’s Law Dictionary, 9th Edition, a referendum is the process of referring a state legislative act, constitutional amendment or an important public issue to the people for final approval by popular vote.

Sen. Ndoma Egba SAN particularly argued that the 1999 Constitution is very clear on the amendment process and makes no reference whatsoever to a referendum. The conceptual tone of this argument is the same as the one that has been mounted over the years in opposition to the clamour for the convocation of a sovereign national conference for the purpose of drafting a true “people’s constitution”. The “anti conference” argument is that there is already a representative government in accordance with the Constitution and there cannot be two sovereign bodies in place at the same time. Put simply, the argument of the National Assembly leans on the false assumption that as representatives of the people, they are sovereign in terms of making decisions on their behalf. They most certainly are not! Even the 1999 Constitution on which they rely says they are not. Section 14 (2) (a) of the 1999 Constitution clearly provides that sovereignty belongs to the people from whom the government through the Constitution derives its authority and power. The people have not surrendered their sovereignty – they gave their elected representatives power and authority, while retaining the authority to revoke the grant of such powers through the process of recall or periodic election. The elected representatives are not high and mighty honourables but servants and hold their terms office subject to the will of the people.

If we venture to take the view expressed by the Late Senior Advocate as wrong and the Constitution actually originated from the people, we will still come to the irresistible conclusion based on its provisions that the Constitution derives its supremacy from the will of the people and it is subject to their ultimate sovereignty. They can call for its amendment or replace it altogether. Even the military that handed us the Constitution had enough constitutional understanding to insert as its preamble “we the people …”

It does appear that the National Assembly is under the mistaken belief that the validity of provisions to be brought into the Constitution by reason of the proposed amendment lay squarely in the procedure stated in the Constitution for its amendment. That belief is itself a propagation of a long held assumption that the validity of the Constitution depends entirely on its provisions ignoring a more fundamental validation that should come from it being an expression of the will of the people. To proceed in this manner will be to continue to ignore our constitutional history, turning blind eyes to the very factor that has led to the structural imbalance that still plagues our democratic endeavor. By now, we ought to have realized that the procedure through which a constitution emerges is as important as its provisions.

Assuming without conceding that the National Assembly is right in its argument on the illegality of referendum premised on its isolated reading of section 9 of the Constitution, will it also be unconstitutional to use referendum as a means of aggregating the views of Nigerians on each and every issue set for amendment? I do not think so. Why is the National Assembly more amenable to conducting public hearings across the six geo-political zones with a few memoranda rather than asking the people directly in a referendum? Your guess is as good as mine. Public hearing is an easy way out – it allows the National Assembly to amend the Constitution as it pleases while giving the impression that it is merely voting in accordance with the will of the people. If the purpose of the public hearings is to collate the views of Nigerians, then the objective is more efficiently accomplished through a referendum, the result of which will be known to all and binding on the National Assembly. Referendum is more inclusive, less vague and its result is easily verifiable. On the other hand, public hearing for the purpose of amending the Constitution is elitist and restrictive, only the views of a select few will be given expression at such a forum and more importantly the result of such a forum (which by experience is the exclusive preserve of whoever called for the hearing) is not binding on the National Assembly. There is absolutely nothing unconstitutional about using a referendum to aggregate the views of Nigerians in respect of the proposed amendments to the Constitution and being bound by such views whenever it chooses to vote in respect of those amendments. This is without prejudice to the competence of the people to change that Constitution altogether without subjecting it to the provisions of the very Constitution which did not emanate from them (by the way, the National Assembly is yet to point to us a single constitutional provision that requires them to embark on public hearings in order to amend the Constitution).

The first and most important obligation of members of the National Assembly is to represent the members of their various constituencies and senatorial districts. In more advanced democracies, legislatures hold public hearings, town hall meetings, caucus meetings and even referendum to aggregate the views of the members of their constituencies in respect of proposed legislations. Few weeks ago, Iceland created a web-based platform using crowdsourcing to aggregate the views of its populace on its proposed constitution. This is because they understand that democracy thrives on popular participation and they are willing to choose any platform which best serves that purpose.

I have observed as a student of comparative constitutional law that the difference between the American constitutional order and the Nigerian lies in the differing view of “the people”. American jurists have over the years interpreted the American Constitution liberally as an expression of the will of the people and as such subject to them, whereas we choose to interpret the Constitution as though it were an end in itself – the Constitution is only supreme because the people say it is and elected representatives must not attempt to fetter the capacity of the people to change it if they so desire.

Tolu is a graduate student of Columbia University Law School, New York

Related Posts

Recent Posts

Court Sacks Abia State Governor, Okezie Ikpeazu

The Federal High Court, sitting in Abuja, has annulled the election of Governor Okezie Ikpeazu of Abia State, the News Agency of Nigeria is reporting. The court also ordered the Independent National Electoral Commission to issue a certificate of return to Samson Ogah, a member of the Peoples Democratic Party, who contested the governorship ticket with the governor. The court held that Mr. Ikpeazu was guilty of tax evasion and was therefore unqualified to have...

Forgery Charge: Saraki, Ekweremadu Plead Not Guilty

The Senate President, Dr. Bukola Saraki and his Deputy, Ike Ekweremadu, were on Monday, docked before an Abuja High Court at Jabi over their alleged complicity in forgery of the Senate Standing Rules, 2015. The two lawmakers took turns and pleaded not guilty to the two-count charge preferred against them by the federal government. They were arraigned alongside former Clerk of the National Assembly, Alhaji Salisu Abubakar Maikasuwa and his deputy, Mr. Benedict Efeturi. Shortly after...

Abdulmumin Jibrin Warns Against Politicisation of Buhari’s Anti-Corruption War

Chairman, House of Representatives Committee on Appropriation, Hon. Abdulmumin Jibrin has urged members of the National Assembly to support President Buhari’s anti-corruption war.   The Lawmaker’s reaction in a series of tweets Thursday through his verified twitter handle @AbdulAbmJ? comes shortly after opposition Peoples Democratic Party (PDP) caucus in the national assembly withdrew their support for the government of President Muhammadu Buhari.

EFCC Traces Three Mansions To Fayose’s Associate

The Economic and Financial Crimes Commission( EFCC) has traced three posh houses to an associate of Ekiti State Governor Ayodele Fayose. The houses, one in Abuja and two in Lagos, are believed to have been bought with part of the N1.219billion pumped into the 2014 governorship election.  The cash believed to be from the office of the National security Adviser (NSA). Fayose has denied having any dealing with the office while Col. Sambo Dasuki (retd.) was...

Reps Ask EFCC, ICPC To Probe Bala, Others Over Land Swap

The House of Representatives yesterday asked the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other related offences Commission (ICPC) to investigate the former FCT Minister, Bala Mohammed, to examine the likely abuse of financial regulations in the land swap policy he introduced while in office. Also to be probed alongside Bala are the Executive Secretary of the Federal Capital Development Authority (FCDA), Engr Adamu Ismaila and the coordinator, Abuja Infrastructure Investment...

Aisha Buhari Gives Fayose 5 Days To Apologize Or Go To Court

Wife of the President, Aisha Buhari has described the statement by Ekiti State Governor Ayo Fayose which fingered her as an accomplice in the famous Halliburton bribery scandal that landed former U.S. lawmaker, Williams Jefferson in jail as “very wild and unfounded.” She threatened to drag Fayose to court if the statement was not retracted within five working days. The letter emanated from the chamber of Mary Ekpere and Co. The letter signed by Ismaila Alasa and Mary Ekpere...

EFCC Arraigns Senior Air Force Officer For Allegedly Receiving N40 Million, Landrover Bribe

The Economic and Financial Crimes Commission (EFCC) on Thursday arraigned, AVM Rufus Ojuawo, in an FCT High Court, Apo, for collecting N40 million gift and a Range Rover sports car from Hima Abubakar. Mr. Ojuawo, a former Director of Operations, Nigerian Air Force, was arraigned before Justice Mahawiya Idris on a two-count charge. The charge says Mr. Ojuawo while in office in March, 2015, accepted a gift in the aggregate sum of N40 million from...

Fresh Militants’ Attack In Ikorodu Communities

Gunmen suspected to be militants were said to have invaded Igbolomu and Ishawo areas in Ikorodu Local Government Area of Lagos State. According to eyewitnesses who escaped from one of the invaded areas, said the gunmen from the Niger Delta came through water channel since yesterday and started shooting sporadically. Credit: Vanguard

Police Confirm Attack On Shell Facility In Imo

The police have confirmed an attack on a facility belonging to Shell Petroleum Development Company (SPDC) at Awarra, Ohaji/Egbema Local Government Area of Imo. Andrew Enwerem, the police public relations officer in the state, told the News Agency of Nigeria (NAN), in Owerri that the police received report of the attack in the early hours of Thursday. Mr. Enwerem could not disclose the extent of damage done to the facility or the group that carried...

I’m Being Prosecuted For Old Grievances- Dasuki

Former National Security Adviser (NSA), Col. Mohammed Sambo Dasuki (rtd), has told a federal high court in Abuja that he is being punished by some persons at the highest level of power in the country for perceived grievances they had held against him while in active military service many years ago. Dasuki, who did not name any particular person, said the punishment being meted out to him was unfortunate having being borne out of mere vendetta.

Government May Borrow N165b To Pay Civil Servants

With fast declining revenue, the Federal Government said yesterday it is now faced with the prospect of borrowing to meet the monthly civil service wage bill of N165 billion. Minister of Finance, Kemi Adeosun, who had met with protesting workers of her ministry on Wednesday, said in a statement in Abuja yesterday that she does not have any power to pay N1.2 billion, which was not in the budget of the Ministry. The minister said...

Nigerians In UK, Europe Express Disappointment With Referendum Result

A cross section of Nigerians in Europe on Friday expressed disappointment over the decision of the UK in a referendum to leave the European Union. Results released early on Friday by UK authorities indicated that 17, 410,742 Britons voted to leave EU, while 16,141,241 others voted to remain. The Leave campaigners won by 52 per cent to 48 per cent with England and Wales voting...

Militants Threaten To Resume Bombing As New Group Emerges

Niger Delta militants have threatened to re­sume hostilities and have alleged that the two weeks ceasefire agree­ment elapsed without any commitment on the part of the Federal Gov­ernment. The fighters said gov­ernment officials are more interested in grand­standing rather than initiating dialogue with them. In a statement entitled: ‘If you make the peace­ful change that we seek impossible, we will make violent change possible’, a group called Ultimate Warriors of the Niger Delta said if...

New Zealand PM Rules Out Ransom For Citizen Abducted In Nigeria

New Zealand Prime Minister, John Key, on Thursday ruled out paying a ransom as a long-held government standing for a New Zealander abducted a day earlier by gunmen in southern Nigeria. He said at a press conference in Wellington that there was no chance of the government paying a ransom for the release of New Zealander being held hostage in Nigeria. Key said the compromise would only put a bounty on the head of any...

PDP Senate Caucus Withdraws Support For Buhari

The Peoples Democratic Party (PDP) Senate caucus yesterday announced its withdrawal of cooperation with the All Progressives Congress (APC)- led Federal Government. The caucus said the resolution would subsist until the government “ceases the belligerent attitude towards PDP members.” A communiqué read by Senate Deputy Minority Leader Emmanuel Bwacha, endorsed by Senate Minority Leader Godswill Akpabio, Minority Whip, Philip Aduda and Deputy Minority Whip, Mrs Biodun Olujimi, said the resolution was adopted at a meeting...

Shootout In Maiduguri Government House Over Rice Distribution

There was shootout between policemen and soldiers in Maiduguri Government  House Thursday afternoon when soldiers in a truck attempted to forcefully get a share of the rice being distributed to Internally Displaced Persons (IDPs) not living in camps. Reporters gathered that the distribution of rice for the IDPs had started from about a week ago under the watch of policemen in the Government House who are to ensure that the rice is given only to...

FG Suspends Sack Of Resident Doctors, Negotiations Continue

The federal government wednesday suspended the sack of members of the National Association of Resident Doctors (NARD) pending the conclusion of the ongoing negotiations on the matter. This was part of the resolutions reached at the mediatory meeting initiated by the Speaker of the House of Representatives, Rt. Hon. Yakubu Dogara, between the federal government delegation and leaders of NARD. The Minister of Health, Prof. Isaac Adewole, was quoted to have suspended the sack as part...

Gunmen Kidnap Foreign Contractors In Calabar

At least three Australian citizens and one Australian resident, who were contractors for Lafarge cement company have been kidnapped and their driver killed in Calabar, Australian Prime Minister Malcolm Turnbull said on Thursday. There was an initial confusion over the number of victims and nationalities of those involved, as police in gave conflicting accounts, Reuters said in a report. But media reports indicate that three Australians, a New Zealander, a South African and two Nigerians...

AMCON Shuts Senator Bruce’s Companies Over Debt

The Asset Management Corporation of Nigeria on Thursday morning sealed the Abuja premises of Silverbird Galleria belonging to Senator Ben Murray Bruce. The galleria currently houses the Abuja studio of the Radio and Television stations of the senator as well as his other business interests. Apart from Bruce’s companies, the seven storey building also houses other business interest of private individuals such as Shoprite, among others. The building was...

House Of Reps To Conduct Public Hearing On U.S. Sexual Allegations Against Members

The House of Representatives says it will convene a public hearing as part of its investigations into an alleged sex scandal involving three of its members. The hearing will allow Nigerians weigh in on the matter and be transparently engaged in the investigations as promised by the House leadership, Nicholas Ossai, the chairman of the House Ethics Committee, said. The scandal allegedly occurred in the U.S. state of Ohio early June. The allegations were...

Army Debunks Militants Allegation On Plot To Topple Buhari’s Govt

Authorities of the Nigerian Army have said allegation by a militant group claiming that a coup plot to remove the administration of President Muhammadu Buhari were the handiwork of mischief makers since there was nothing like that in the offing. A statement titled ‘Warning to Mischief Makers; Nobody is Planning Any Coup’ and signed by Col Sani Usman said, “The attention of the Nigerian Army has been drawn to another campaign of calumny and distraction by...