14th November, 2012
By Babafemi Ojudu
Concerning those who argue that there can never be two sovereigns in one nation, and regarding my colleagues in the National Assembly who claim that there cannot be another body to consider the future of the country and prepare the ground for the writing of a proper people-centred and citizens-authorised constitution, let us clarify their lack of information – assuming that it is not deceit.
While constitutional conferences were being held before Nigeria’s independence, didn’t the country have a legislature? For instance, on March 26, 1957, colonial Nigeria’s central legislature, the House of Representatives (as Kalu Ezera reports in his famous book Constitutional Developments in Nigeria) “unanimously agreed to instruct federal delegates to the May Constitutional Conference; to demand independence for Nigeria within the Commonwealth in 1959.”
Even a sitting legislature recognised that the fundamental issues that were tabled before the constitutional conference were beyond its province. Only a national talk-shop representing all interests within this federation can write a good constitution which will be making a true claim when it proclaims that, “We the people….”
Conclusion
The legislature, as the grand institutionalization of a body charged with making laws for the good of any land, is a healthy reflection of present day realities and a platform where the people exercise their mandate through their elected representatives. The legislative branch of government has a critical role to play in promoting accountability, probity and transparency in governance through the system of checks and balances, especially in a presidential system of government such as practised in Nigeria.
While law making is the principal function of the legislature, it no doubt has other extremely important functions which are representation and oversight functions. In every functional democratic society, government consults, interacts and exchanges views with its citizenry and equally allows the governed to vent their preferences. Through this process, citizens have a sense of belonging and see themselves as owning the process to either enthrone or depose anybody. This symbolic relationship strengthens the relationship and gives a boost to a candid assessment of how government programmes and policies are felt even to the grassroots. The corollary of this, is that effective legislature represents constituents by way of lobbying, influencing laws and policy making process to favour his constituents and standing up to the executive as a bulwark of opposition to any abuse which may adversely affect his constituents.
Currently, the National Assembly Joint Committee on the Constitutional Amendment is working on the amendment of the 1999 Constitution. The report of the Presidential Committee on the Review of Outstanding Constitutional Issues headed by the former Chief Justice of Nigeria, Justice Alfa Belgore is also being expected.
As it is evident from what I have stated earlier, though a member of the legislature, I am a firm believer in the need for a sovereign national conference to chart the way forward for Nigeria. There are no grounds for the fear expressed that the convocation of such a conference is a recipe for the disintegration of Nigeria.
Only recently, the Senate President, David Mark, dismissed agitations for national conference. He was reported to have likened them to, “the voice of a vocal minority”. He said the National Assembly which has representatives from all over Nigeria is at liberty to re-work the constitution.
I disagree strongly with the position of the Senate President. Any good student of constitutional history of this country and anyone who is honest about the structural fatalities of the Nigerian federation and the gathering ominous clouds, will accept the need for a national turn-around which cannot happen until Nigeria has kept a date with history.
I believe that the barrage of challenges which assail us as a country calls for sincerity and sacrifices on the part of all of us. There is no alternative to dialogue. The nationality issue is at the base of our challenges. I make bold to say that it was the nationality question that wrecked the former Soviet Union; it reduced the size of India, Pakistan, Malaysia, Yugoslavia, and Checkoslovakia, to mention a few. I recall with trepidation the clairvoyance of Professor Wole Soyinka, over Radio Kudirat at the dawn of 1999: “Let no one be in doubt, this is why the nation is not yet at peace, will not be at peace until the issues that turned Abiola into a sacrificial lamb, as they did his wife Kudirat, those issues that consumed Alfred Rewane, Shehu Yar’Adua, Bagauda Kaltho, the four Ogoni Chiefs, Ken Saro Wiwa and his eight companions, as well as numerous others, are all brought to the surface, addressed and resolved. Those issues are direct and unambiguous: what sort of nation should Nigeria be? How are its internal relationships to be ordered? How do we achieve the equitable pattern of the relationships of the parts to the whole that alone can guarantee its stability? When and how do we resolve the reality of marginalization? How do we destroy hegemonic thinking, acting, manipulating, and scheming? How do we destroy the hegemonic arrogance of the few before the few destroy the nation?”
Must we travel the way of Lebanon, Yugoslavia or the road to Kigali, Darfur or Mogadishu before we allow common sense and simple decency to prevail? Real and perceived fear and cries of marginalization cannot be forever dismissed by the ruling elites who feel secure in their cocoons.
To end with a return to the concept of national transformation and its relationship with constitutionalism, the American constitutionalist Bruce Ackerman, points us in the direction of how to respond to those who think the solution is constitution review by the legislature. Ackerman argues that “constitution making is the necessary and final stage of liberal revolutions, a revolutionary ‘constitutional moment’ of rupture from the ancien regime and the founding of a new political order.” He makes a critical distinction between “ordinary” decision-making by the government, based on legislative laws, for instance, and “higher” lawmaking by “the people”.
We are therefore calling for a national conference where the people will exercise their inalienable rights for “higher lawmaking”. This is what the uninformed opponents of the national conference must be made to understand. Amendment to the constitution is ordinary lawmaking, re-founding of a political order which will lead to a new constitution is “higher” lawmaking by the people.
As Ackerman stated:
What distinguishes higher lawmaking is a distinctive process, a particular timing, and heightened, deliberative decision-making. Foundationalists embrace the view that the special status of constitutional politics derives from its popular sovereignty, expressed through constitutional convention processes. Constitutional politics is considered to correspond to a higher level of popular deliberation and consensus, and as such, is distinguishable from ordinary politics….Constitution-making is conceived as the foundation of a new democratic order.
It is only when a constitution comes out of such a process that it can enjoy popular sovereignty. The burden of national transformation does not fall on the legislature; it devolves on the people. And the people have to elect an assembly specifically for that purpose. Whether we like it or not, there will be a referendum sooner or later about the fate and future of Nigeria. The only choice that the leaders have is to decide whether they will do that out of their own volition or whether they will be forced by forces greater than them to convene that referendum.
Great Ife, I thank you for your attention.
• Being text of a lecture delivered to the Political Science students of Obafemi Awolowo University, Ile Ife on 8 November, 2012.