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

BREAKING: Gambia’s Yahya Jammeh ‘agrees’ to step down

Yahya Jammeh has agreed to step down as president of The Gambia, according to reports.   Nicholas Germain, a France 24 journalist, quoted sources as saying Jammeh is currently writing a statement where he accepts to cede power.   Guinean officials tell @FRANCE24 that Jammeh currently writing statement where he accepts to leave, in the presence of Guinean officials — nicolas germain (@nicolasF24) January 20, 2017   Jammeh, who lost Gambia’s presidential election to Adama Barrow, initially accepted defeat and...

BREAKING: Donald John Trump sworn in as 45th president of the United States of America

American billionaire Donald  John Trump has been sworn in as the 45th president of the United States of America, succeeding Barack Obama in the White House.   You can follow the updates here on live stream:   http://edition.cnn.com/specials/inauguration-360-live-video

3rd Mainland Bridge Traffic: The irresponsibility of Fashola & FERMA – By Adeeko Ademola

Recently, there have been tales of terrible gridlocks in a particular part of Lagos, the third mainland bridge to be precise and this has over time had it's toll on the traffic situation of some major routes in the metropolis.The Third Mainland Bridge is the longest of three bridges connecting Lagos Island to the mainland, the other two being the Eko and Carter bridges. The bridge which serves as an alternative route to Agege...

Governor Obiano Commits To Employing 178 Youths In Anambra

The Anambra state government has pledged its commitment to solving the problem of youth unemployment in the state, through opening windows of opportunity in various fields of the economy including agriculture, trade and commerce, in the civil service. The Secretary to the State Government, Professor Solo Chukwulobelu, revealed this when he visited the Umuawulu Training Camp where 178 youths were undergoing training ahead of employment into the state civil service under Operation Clean and Healthy Anambra, OCHA Brigade. The agency...

Gabriel Jesus Cleared To Make Debut Against Tottenham

Manchester city have been cleared to play 19-year-old Brazilian winger, Gabriel Jesus, against Tottenham on Saturday, after formally completing his £27 million move from Palmeiras. The Brazil international, Jesus, has agreed to a five-year deal with City in August. He stayed with Palmeiras until the end of the Brazilian season in December. The footballer has won an Olympic gold medal with his country, having scored three times in the men’s football tournament in Rio, after which he was promoted to the...

Lagos To Launch Community Policing To Tighten Security

In a bid to reduce crime and complement the efforts of security agencies, the Lagos state Governor, Akinwunmi Ambode, has announced plans to strengthen community policing.   He disclosed that the government would recruit 5,700 personnel, with 100 in each of the 20 local government and local council development areas within the first quarter of 2017.   The governor also announced plans to extend its infrastructural renewal drive with the construction of 181 local government roads in 2017.   He made the revelation at...

Boko Haram: 75 NSCDC Personnel Killed In Borno In 2016 – Officials

The Borno Command of the Nigeria Civil Defence Corps says 75 personnel of the command were killed while 15 were declared missing in action in the year 2016.   The Commandant of the Corps, Ibrahim Abdullahi, told journalists in a news conference that the officers were killed in separate attacks in Gwoza and Gamboru Ngala in the Boko Haram insurgency.   “We have alerted our sister agencies on the issues while the NSCDC national headquarters have assisted the families of the bereaved.”...

NCC begins enforcement of N5 million fine over unsolicited Calls/SMS

Nigerian Communications Commission (NCC), has said that it has commenced the enforcement of the Do Not Disturb (DND), code which compels mobile network operators to stop sending unsolicited messages to their subscribers.   Prof Umar Danbatta executive vice chairman of NCC at a meeting with the Academia on ITU Study Group Participation held at Digital Bridge Institute, Abuja, said the move became imperative because the NCC had given the operators ample time to comply with the regulatory directive and was now...

Barack Obama berates Republicans for blocking efforts to close Guantanamo Bay

US President Barack Obama delivered an angry parting shot at Congress on Thursday, berating Republicans for blocking his efforts to close the military detention center at Guantanamo Bay. The facility “never should have been opened in the first place” Obama said in a scathing two-page letter on the eve of President-elect Donald Trump’s inauguration. “There is simply no justification beyond politics for the Congress’ insistence on keeping the facility open,” he added. Trump has vowed not...

Trial of ex-NIMASA boss, Jauro, fixed for January 24.

A Federal High Court in Lagos on Friday fixed Jan. 24 for continuation of the trial of a former Acting Director-General of NIMASA, Haruna Jauro, who is facing a N304.1 million fraud charge.   Jauro, who assumed leadership of the Nigerian Maritime Administration and Safety Agency (NIMASA), is charged by the Economic and Financial Crimes Commission (EFCC) alongside Dauda Bawa and Thlumbau Enterprises Ltd on 19 counts bordering on fraud.   The News Agency of Nigeria (NAN) reports that the defendants, who were...

BREAKING: Yahya Jammeh asks for extension of deadline to vacate office.

Gambia’s leader Yahya Jammeh has asked for the extension of the deadline given to him to vacate office by ECOWAS from noon to 4 pm local time, Reuters reported on Friday.  Senegal forces entered the Gambia hours after the opposition figure Adama Barrow, who won the December 2016 presidential election in the small West African nation, was sworn in at the Gambian embassy in Dakar.   But the military intervention – named Operation Restore Democracy – aimed at installing Barrow...

Washington braces up for massive protests as Trump takes oath of office

Law enforcement officers in Washington were on Friday in brace for hundreds of thousands of people planning to celebrate or protest Donald Trump’s inauguration as president of the United States. About 900,000 people were expected to jam-pack central Washington, including the grassy National Mall facing the Capitol, where the New York businessman and former reality TV star will be sworn in. A disparate group of liberal activists irked by comments by Trump about women, illegal immigrants and Muslims have planned protests...

We shut tomato processing plant due to lack of forex, says Dangote official.

Edwin Devakumar, a senior executive with Dangote Group, says the conglomerate had to shut down its tomato processing factory due to lack of foreign exchange for raw material import.   In an interview with Reuters, Devakumar, said the Dangote group has been cutting down its operations across board due to lack of necessary foreign exchange.   “Where the foreign exchange is not available, we are cutting down our operations. For example … we had a tomato-based processing plant, we have shut it down,” Devakumar...

JUST IN: IPOB Trump solidarity rally turns violent

The solidarity rally by the indigenous People of Biafra, IPOB, for new US President, Donald Trump in Port-Harcourt, Rivers State has turned violent. Media and Publicity ?secretary of IPOB, Mr. Emma Powerful, in a short message he sent to DAILY POST alleged that no fewer than 11 members of the pro-Biafra group have been shot dead by security operatives. “They have attacked our people; 11 have been confirmed dead, many others have bullet wounds”, he claimed in the statement. He alleged that...

Protests erupt in Sri Lanka against Donald Trump

A small, but vociferous group on Friday staged a protest outside the U.S. Embassy in Sri Lanka on the inauguration of Donald Trump as U.S. President, officials said.   Carrying placards and chanting slogans, the protestors denounced Trump’s comments on various issues including the environment, war and immigrants and claimed they could have an impact on Sri Lanka.   “We are showing our solidarity with all the people throughout the world who are taking part in protests against president-elect Trump,’’ Siritunga Jayasuriya, leader...

Meet The #PadMan advocating Reusable Sanitary Pads for School Girls

With Nigeria in a recession, embracing frugality is helpful and recommended, but there are things that frugality can’t deal with. One of them is the cost of sanitary pads in Nigeria today. Women and girls simply cannot opt out of their periods. Barring pregnancy or ovulatory disorders, menses will occur every month and the flow must be dealt with. Imagine all these worries for teenage girls attending schools combining the fears of expensive sanitary pads with the...

Two teachers rape girl after showing her porn.

Two teachers, Stanley Akanno and Olakunle Hassan, both teachers in a private primary school in Amuwo Odofin, were yesterday paraded by Assistant Inspector-General of Police, Zone 2, AIG Kayode Aderanti, for serially defiling their 6-year-old female pupil.   The teachers, he said, during extra mural classes, showed pornography on their laptop to the pupil and made her practice same on them. “The pupil has been taken to a government hospital where it was medically established that she had been deflowered. The...

Educate the girl child, stop building mosques – Sarkin Kano

The emir of Kano Mallam Muhammad Sanusi II has called out wealthy northerners to stop building mosques and to stop early marriage of the girl child and start educating female children, since majority of these girls can barely read and write. He made the call on Thursday in his keynote address at the 3rd international conference on Islamic Banking and Finance, organised by the International Institute of Islamic Banking and Finance, Bayero University, Kano. “I’m just tired of people coming to...

IG raises alarm over the rise of suicide cases in the Police force

The Nigerian Police Force is worried over the rising cases of suicide among its officers across the country. The Assistant Inspector General of Police (IGP) Zone 5, Abubakar, Mohammed, lamented the development in an interactive session with policemen in Yenagoa, Bayelsa State, on Thursday. He said recent statistics confirmed that more policemen are taking their lives. Mohammed, a former Director at the International Criminal Police Organisation (Interpol) office in Lyon, France, said the Inspector-General of Police (IGP) has ordered senior police officers...

UPDATE: Jammeh’s step-down deadline may be shifted by 12 hours to solidify negotiations

West African leaders have given Yahya Jammeh, who lost elections last month, until midday on Friday to hand over power and agree to leave The Gambia or face military action carried out by the regional bloc ECOWAS.   However, as it is now, all indications show that the deadline may be shifted by 12 hours as leaders of Guinea and Mauritania are currently in The Gambia for talks with Jammeh to leave power.   Though, this information is yet to be made official,...

El-Rufai donates land for Methodist Church in Kafanchan, begs church not to relocate

Governor Nasir Elrufai of Kaduna State has promised to provide additional land for building of Methodists church in Kafanchan, Southern Kaduna The governor who made the promise when he received the prelate of the Methodist Church Dr. Samuel Chukwuemeka Kanu Uche in his office also urged the Church not relocate from their present location. He said: “I visited your church in Kafanchan after the violence. We are willing to give you another plot of land in Kafanchan, but please consider...