By Dr. Olisa Agbakoba
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Dr.
Olisa Agbakoba
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At last,
the Sovereign authorities have accepted the need for a National Conference.
Civil society in Nigeria has always insisted that only the People of Nigeria
can authenticate, legitimize and endorse a Constitution to govern their
affairs. Unfortunately, this simple wish was always denied by the colonial,
military and even elected government. So President Goodluck Ebele Jonathan’s
Independence Declaration is a major milestone.
The late Aka-Bashorun, my most illustrious
predecessor, as President of Nigerian Bar Association, the first to clearly
articulate the need for a Sovereign National Conference, as long ago as the
1980’s, must be rejoicing in his grave. Civil society has always stated that a
National Conference is a vital requirement for a People’s Constitution for
Nigeria.
Civil society’s demands
have always been straight forward and simple – that Nigeria will benefit
from a robust discussion on two vital questions posed by Late Bola Ige, when he
said “…there are two basic questions that must be answered by all of us
Nigerians. One, do we want to remain as one country? Two, if the answer is yes,
under what conditions?” I respectfully suggest that Bola Ige’s questions are
well framed as the relevant National Questions we need to address, if we are to
build a new Spirit of commitment to Nation and service to motherland.
President Jonathan has
charged a committee to frame the issues and nature of participation, and most
important the legal basis upon which the outcomes of a National Conference can
be enacted into law by the National Assembly.
Civil Society on the other
hand has expressed the view that the nature of the conference will necessarily
have to be sovereign. I will return to the basis of this request by civil
society.
What is important at this
stage is the utilizing of the limited platform offered by President Jonathan to
engage Nigerians in very robust discussions on the Constitution and without
“No-Go” issues.
Even though there are
challenges about participation, my suggestion is that participants may be drawn
from ethnic nationalities and at least the six basic estates of the realm,
namely the Executive, Legislature, Judiciary, Media, Civil society and
Organized Business. I have defined civil society in a very broad sense to
include NGO’s, religious and traditional institutions and of course labour,
youth and women.
I agree with Dr. Tunji
Abayomi when he said “Every Constitution is preceded by a debate of terms
and consensus on principles”. This simply means that we have to agree. I
think the most important key to a successful National Conference is the
structure of government and devolution of powers. It is obvious that Nigeria is
a very diverse country. Scholars suggest that federalism is the political
system best suited to diverse peoples. If this is agreed at the conference, the
corresponding question should be about the structure of the federal system and
the scope of powers of the autonomous governments, that is the federal
government on the one hand and the state government and even the local
government, on the other.
I would readily adopt Dr.
Alex Ekueme’s recommendation that the new structure of Nigeria should be based
on our six geo-political zones. I would further recommend massive devolution of
powers from the Central government to the state governments. This is called the
principle of subsidiarity. If we accept this basic conceptual framework, it
will then be easy to constitutionalise the political arrangements into a
Peoples’ constitution.
Now to compensate for the
non sovereign nature of the conference, I would like to identify four vital
elements that we must keep in mind. They are inclusion, authority, validity and
legitimacy.
By inclusion I mean every
Nigerian must be allowed to freely speak his mind. By authority I mean that we
have to accept that the President and National Assembly are the convening
authority. By validity the government has to accept that we the People shall
validate the Constitution by Referendum. By legitimacy I mean that our
discussions shall not be altered by the government, but shall be final and
binding and validated by Nigerians
I now turn to perhaps the
most difficult subject of all in this matter of the National Conference. Here
is the question – after we agree, how do we bring the discussions into legal
force? I think Prof. Ben Nwabueze, SAN, has, as usual, provided a simple and
lucid answer.
Prof. Nwabueze reminds us
that the National Assembly has two types of legislative powers. First, the
National Assembly has legislative power similar to that of any House of
Assembly of a State. In this context the National Assembly is just one of three
of the branches of the Federal Government. The National Assembly makes law in
this field pursuant to its powers contained at Section 4(2) of the
Constitution.
These are the exclusive and
concurrent lists. But the National Assembly has a second legislative power.
This is covered by Section 4(1) of the 1999 Constitution. Prof. Nwabueze having
noted that “Section 4(1) provides that legislative powers of the Federal
Republic of Nigerian shall be vested in the National Assembly”, goes on to say
that what is so vested in the National Assembly therein, is the
legislative power, not of the Federal Government, but that of the Federal
Republic of Nigeria. The legislative power in this second field is a term wider
than the legislative power of the National Assembly as a branch of the Federal
Government. In short the National Assembly has dual power to make laws on the
one hand as a branch of the Federal Government and on the other hand for the
Federal Republic of Nigeria.
The National Assembly is
authorized to make laws for the Federal Republic of Nigeria for its peace,
order and good government. In this sense, according to Prof. Nwabueze, and I
respectfully agree, the entire legislative sovereignty of the Federal Republic
of Nigeria is vested in the National Assembly. It is important to state that
the legislative power of the National Assembly to make law for the Federal
Republic of Nigeria is not limited to matters specified in the exclusive and
concurrent list.
It includes, Prof Nwabueze
says, and pursuant to Section 4(4)(b) “any other matter with respect to which
it is enpowered to make laws in accordance with the provisions of this
Constitution”. It is in this context that the National Assembly can
exercise powers pursuant to section 4(1) to repeal Decree 24 of 1999 which is
the legal basis of the 1999 Constitution and replace it with a brand new
Constitution. The legal position will be different if the National Assembly is
merely altering the Constitution. This is covered by Sections 8 and 9.
Prof. Nwabueze cites the
example of what Parliament did in 1963 when it replaced the whole of 1960
Independence Constitution with the Republican Constitution of 1963. All
Parliament did in 1963 was to repeal the Order-in-council, made by the Queen of
England providing for the Independence Constitution and replaced it with a
brand new Republican Constitution.
Decree 24 is an existing
law under Section 315(4) of the 1999 Constitution. So Decree 24, being a law
with respect to which the National Assembly has power under Section 4(1) to
make law, is deemed to be an Act of the National Assembly and can therefore be
repealed.
Prof. Nwabueze says it
would be inconceivable and manifestly absurd that there should be an existing
law as defined in Section 315(4) which is beyond the power of the legislative
authority of the sovereign state of Nigeria to repeal.
So the way I see it is
that, assuming we can agree on the content of the Constitution that can work
for us, it should be very easy to constitutionalise the agreements reached at
the National Conference by invoking the special legislative powers of the
National Assembly and enacting those agreements reached into a supreme
Constitutional document. If this process is followed, the Constitution as an
outcome of the Sovereign will of the People will have the stamp and authority
of Nigerians, validated by a referendum before enactment by the National
Assembly. Then as Kingsley Moghalu says in his tremendously important book “Emerging
Africa” we can all aspire to a Fundamental Transformational Agenda for
Nigeria.
Dr. Olisa Agbakoba is a
Senior Advocate of Nigeria (SAN).
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