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

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