MEMORANDUM TO THE PRESIDENTIAL CONSTITUTION CONFERENCE ADVISORY COMMITTEE: PREPARED
AND SUBMITTED BY THE
YORUBA NATIONAL ASSEMBLY
Friday, 1st November 2013
PREAMBLE:
WHEREAS the Nigerian nation-state continues
to stand on a very faulty and weak constitutional foundation which invariably
undergirds its anemic and dysfunctional social institutions, cultures and
personality types that are systematically failing to deliver on the promise of
the dividends of democracy, nation-building, growth and development; but
continues to lurch from one crisis to another;
AND WHEREAS this very faulty and weak
constitutional foundation of the country continues, since the advent of
external and internal colonialism, to exist because it has never clearly
derived its source of authority directly
from the people acting in a constituent assembly (or national sovereign
conference) and asking adult citizens to consent (or not) on the conference
outcomes in a referendum;
AND WHEREAS a legitimate constitution is not only the foundation of the state, with roots
anchored in the people, it is also a medium for the people in a Convention, (as
in the case of the American people at the Philadelphia Convention in 1787), a
Constituent Assembly or a Sovereign National Conference, to define and affirm
their aspirations to become a nation, to define and affirm the purposes, aims
and objectives of the nation-state they, by the constitution, are creating, and
the direction they desire it (the nation-state) to go which is not a mere
matter of formal or verbal formulation by a legal draftsman but rather an
authentic embodiment of the true feelings and sentiments of the people,
commanding wide acceptance by the generality of them;
AND WHEREAS mimicking
the assertion in the preamble to the Constitutions of the United States and
other countries, where the constitution is in fact made by the people, the
preamble to the 1979 and 1999 Nigerian Constitutions declares in a palpable
lie: “We the People of the Federal Republic of Nigeria…do hereby make, enact
and give to ourselves the following Constitution” - which is an expensive
and intolerable lie and a grievous insult to invoke the name and authority of
the people in a Federal Military Government Decreed document in the making of
which they had no hand at all;
AND WHEREAS the peoples of Nigeria are
being governed in accordance with the unremedied lie and its ruinous
overpowering concentration of powers, functions and resources in a central
government that promotes policies of fragmentation, marginalization and
alienation of large majority of the Nigerian stakeholders as critical
provisions of the Military Decreed Constitution of the Federal Republic of
Nigeria, 1999 continue to make nonsense of the principles (a) of
inclusion and participation of Nigeria’s principal stakeholders; (b) of
federalism or unity-in-diversity (or diversity-in-unity); (c) of secularism (or
separation of State and Religion); and (c) of republicanism and monarchy;
AND WHEREAS following elections to the
Office of President, Vice President and to the Senate and House of
Representatives for the Federation and to the Offices of Governor, Deputy
Governor and House of Assembly for each of the current 36 States comprising the
Nigerian Federation, there developed a general clamour by ethnic groups, civil
society groups and individuals comprised in this Nation-state for convening a
Conference of the Nationalities and the establishment of an Independent
National Constitution Conference with full powers of laws that will enable the
ethnic Nationality groups comprised in this Nigeria country have the golden
opportunity to exercise their inherent right to determine democratically for
themselves the new Federal and Regional Constitutions by which they wish to be
governed in one united Nigeria as their supreme laws of the land binding
on all organs of government and on all authorities and individuals in the
Nigerian federation;
AND WHEREAS the President of the
current Federal Republic of Nigeria considers it necessary and expedient for
the peace, order and good government of Nigeria to make provisions through the
Presidential Advisory Committee to facilitate the processes and procedures for
the convening of the aforesaid Conference;
NOW, THEREFORE, having
resolved to welcome the institution of a Presidential Advisory Committee on a
national conference/dialogue, as a first step towards determining basic
questions that shall guide the next phase of an Independent Nigerian
Nationalities Constitutional Conference in the current Nigerian federation, WE
OF THE YORUBA NATIONAL ASSEMBLY, acting for and on behalf of the Yoruba
Nation, are of the strong opinion that time and resources should be spent on
creating proper procedure to make a valid and legitimate Constitution because
it is the procedure of making a Constitution that legitimizes it, not the
content, instead of always working to amend all extant illegitimate and
disputed Nigerian Constitutions that have undergirded the Nigerian anomie and dysfunctional
society; and hereby respectfully submit hereunder our views and positions in
the following desideratum or unassailable factors as our ‘Memorandum’ on each
of the terms of reference given to your Advisory Committee by President
Goodluck Ebele Jonathan as follows:
1. TO CONSULT EXPEDITIOUSLY WITH ALL RELEVANT STAKEHOLDERS WITH A VIEW TO
DRAWING UP A FEASIBLE AGENDA FOR THE PROPOSED NATIONAL CONSTITUTIONAL
CONFERENCE.
We make bold to reiterate that it is
self-evident that, in a democracy, it is NOT government that gives a
nation-state a Constitution rather it is a Constitution that gives a
nation-state a government so much so that a valid Constitution is NEVER enacted
into Law but usually endorsed, through a binding referendum or a set of
referenda, as the organic will of a people as recommended by their independent
constitutional conference representatives.
We, therefore, recognize and insist on
the fact that the primary landlords who are therefore the ONLY sovereign principal stakeholders of the Nigeria nation-state and
to whom all other authorities in governance are subordinate
agents are the mono- and
multi-linguistic nationalities: who must be consulted and assisted by the
Presidential advisory Committee on national conference/dialogue to meet to
discuss the reasons of what are the agenda and methodology for constituting their Union so as to
ensure that each and every one of them shall develop and determine the
appropriate agenda for the Union deliberations and method of nominating and
selecting and appointing its own national linguistic delegates in such
manner(s) as to prevent unnecessary and unwholesome interventions of parochial
and partisan rivalries and ‘foreign’ beneficial interests.
Hence, we humbly suggest the adoption
of the year 2006 proposal by the PRO-NATIONAL CONFERENCE ORGANIZATIONS
(PRONACO) of twelve (12) mono-ethnic and six (6) multi-ethnic Nationality
categories – making a grand total of eighteen (18) Nationality Regions (See
Schedule one under Appendix One below on pages 19 - 24); OR, in the
alternative, six (6) Administrative Zones OR their Constituent thirty-six (36)
States (See Schedule two under Appendix One below on pages 25 - 66) - as
the ones that best represent all the relevant principal stakeholders in the
Nigerian project whose views must drive the contents of discussions and
decisions/agreements on their agreed Conference Agenda.
With regards to the subjects or contents
for the conference AGENDA, which must
be recommended to the first Plenary Session of the Conference for
deliberation and adoption, we accept the views of the National Consensus Group
(a civil society organisation) that “the Constituent Assemblies formed to make
past Constitutions can guide us. But we can even accelerate the process because
there is no magic in terms of the contents
of a people’s Constitution for the Nigerian federation that cannot be derived
from previous Constitutions. Despite the intense arguments on the contents
of the Constitution, Constitution is validated by the procedure of making it
not the content.
Thus a Constitution that is made through the right
process, though appearing unreasonable in content, is a valid Constitution
nonetheless because a people, in making their Constitution, can decide how they
want to be governed for good or for bad”. We, therefore, offer the suggestions
exhibited under Appendix Two (on pages 27 - 41) of this Memorandum which,
judging by the tortured and turbulent corruption-laden ‘presidential’
form of political history of Nigeria, are necessary and sufficient bases for
providing adequate ‘parliamentary’ form of
answers to the enduring Nigerian national question of how the peoples of our
multi-ethnic country can begin, for the first time since the loss of
independence and the advent of pervasive external and internal colonialism,
live in unity, peace and progress.
2. TO MAKE RECOMMENDATIONS TO GOVERNMENT ON STRUCTURE AND MODALITIES FOR THE
PROPOSED CONFERENCE
(i) With respect to the structure of
the conference, we advise as follows:
(a)The conference shall be structured
on the basis of equal representation of members from each of the Mono- and
Multi-linguistic nationality Regions/Zones/States indicated earlier under your
first term of reference.
(b) Each
Mono- and Multi-linguistic nationality Region/Zone/State shall make its
representation inclusive; taking account of mostly inherited vital
characteristics of sex, age, relevant knowledge, indignity and sub-ethnic
diversity within the nationality Region/Zone/States.
(c) Each
Mono- and Multi-linguistic nationality Region/Zone/Statere presentation must be
allowed to bring its own group of advisers (that may indeed include professionals,
trade unions, students unions, market women etc) who shall have no voice and
vote at the Conference but shall be allowed to attend the Conference for the
purpose of collecting data on the basis of which to advise their
representatives on points raised at the Conference, etc.
(d) Each
Mono- and Multi-linguistic nationality Region/Zone/State must bring an Agenda
which shall indicate, inter alia, the system
of government it wishes to establish, including the territorial structure of
the Region/Zone/State, the structure of powers and relationships, financial
relations, as well as issues of justice to ensure, among other things, that the
critical resources and high offices in the Federal and Regional/Zonal/State
Governments are not monopolized by “a few ethnic or other sectional groups”
- stating especially in their lists of preferred Exclusive
(only federal), Concurrent (Federal and
Regional), and Residual (only Regional) powers,
functions, and resources.
(e) Nomination
and selection to the National Constitution Conference shall be on non-partisan
basis; meaning those known political parties and other sectarian groups shall
not take part in the nomination and selection of Conference Delegates.
(ii) In terms of modalities or the
procedural rules, ground norms for deliberations, conference bulletins and
other modalities determined by the Conference Commission are, again, expected
to be presented and recommended to the first Plenary Session of the
Conference for discussion and adoption at the conference opening session on Day
One. In particular, we submit as follows:
(a) The proceedings
of the National Constitution Conference shall be conducted in accordance with
the Standing Orders of the House of Representatives with such modifications
(including the requirement that all the delegates from each Region shall vote
in a block of one or, in other words, that each Region’s/Zonal’s/State’s votes
on any and all issues shall always count as one)as may be approved by at least
two-third majority of the Regions’s/Zonal’s/State’s Conference Delegates and,
subject to such modifications, the Standing Orders shall be deemed to be the
Standing Orders of the National Constitution Conference.
(b) Attendance at
the National Constitution Conference by delegates from the Federating Units
shall be mandatory; however, the quorum for the purpose of transacting any
business other than adjournment shall not be less than two-thirds of the entire
membership. Provided that no proceedings of the National Constitution
Conference shall be rendered invalid under this section unless objection is
raised by a member present, other than the person presiding, that there are
fewer members present than the prescribed quorum. In case of any boycott of the
National Constitution Conference by a section or part thereof of the Nigeria
country before or during the pendency of the Conference, quorum shall be
constituted by two-thirds of the members then present and diligently
participating in the Conference; and any or those boycotting the Conference
shall be regarded as having exercised its or their Nationality or peoples’
right to self-determination, including opting to secede from or cease to be a
part of the Nigerian federation.
(c) Conference
decisions on federal powers, functions, and resources allocation formula shall
be by consensus, and the person presiding at a meeting of the National
Constitution Conference shall use his best endeavour to see that decisions are
made by consensus among those present and forming a quorum at the meeting. Upon
failure to arrive at a consensus, any region or group of them that is involved
in such disagreement shall have the freedom to exercise its or their
Nationality or peoples’ right to self-determination, including opting to secede
from or cease to be a part of the Nigerian federation. The democratic principle
behind this suggested Conference decision-making modality is, regardless of
size, the equality and autonomy of the Regions/Zones/States and the right of
each of them to be protected from any form of imposition and domination by
other Regions/Zones/States in a matter of Fundamental Rights of the Federating
Units and their citizens.
3. TO MAKE RECOMMENDATIONS TO GOVERNMENT ON HOW REPRESENTATION OF VARIOUS INTEEREST
GROUPS AT THE CONFERENCE WILL BE DETERMINED
In relation to representation at the
National Constitutional Conference, we advise as follows:
(i) By way of emphasis and as indicated
earlier, nomination and Selection to the National Constitutional Conference
shall be on non-partisan basis, meaning that known political parties and other
sectarian groups shall not take part in the nomination and selection of
Conference Delegates.
(ii) Delegates to the National
Constitution Conference shall be drawn through nomination and selection from
either each of the 18 Mono- and
Multi-nationality Regions on the basis of 20
delegates from each of them (making a total of 360);
OR, in the alternative, from each of the 6
Administrative Zones on the basis of 54
delegates from each of them (making a total of 324);
OR, still, from each of the 3 senatorial
districts in each of the 36 States of the
federation on the basis of 3 delegate per
district (making a total of 324) nominated
and selected from identifiable linguistic nationalities indigenous to the
Region/Zone/State, regardless o f delegates’ other acquired professional and/or
social identities.
(iii) A person shall be eligible for
nomination and selection as a delegate to the National Constitution Conference
if he or she is a citizen of Nigeria and is not less than 18 years of age.
(iv) Any vacancy occurring among the
delegates to the National Constitution Conference shall be filled by a
replacement from the Region concerned.
(v) The following persons shall not be
eligible for nomination and selection as delegates to the National Constitution
Conference if:
(1) He is of unsound mind; OR
(2) He is bankrupt or makes a
composition with his creditors; OR
(3) He is convicted of a felony,
or any offence involving dishonesty; OR
(4) He is found guilty of serious
misconduct in relation to his/her public duties; OR
(5) He is a member of the Armed
Forces or the Nigerian Police Service, or a member of the public service of the
federation or of a state/local government unless he/she has resigned his/her
office not less than 30 days before his/her nomination and selection.
4. TO ADVISE ON A TIME FRAME FOR THE CONFERENCE
On timeline, we advise as follows:
(i) The conference shall complete its assignment within nine months from the
date of its inauguration by the President of the Nigeria Federation.
(ii) The Conference shall ensure, through its provisions, that a new constitution
ratified ONLY on a Regional referenda shall be gazetted and come into full
force and effect by October 1, 2014 to, among other worthy considerations,
allow for the timely conduct of the 2015 General Elections on the basis of its
overall provisions. We give primacy and preference to the separate nationality
Regional/Zonal/State Referendum because, to all intents and purposes, the
Nigeria country does not, at any time, have any reliable and valid census data
to guarantee an acceptable one-country-wide Referendum for all the
Nationalities. As stated earlier, every effort must be made to protect every
Nationality against domination and oppression by the apparent numerical weight
of other(s) in extant population of registered voters. In this regard, if there
is a “NO” vote from a Region, such shall be taken as a necessary and sufficient
indication of its declared intention to achieve autonomy or independence for
its or their citizens.
Most importantly, we would like to
advise that, within their respective jurisdictions, both the Federal and State
governments should be prepared to enact appropriate laws to prorogue, if necessitated by time constraints,
both their executive and legislative arms of government so as to enable all the
existing three tiers of government continue in office and more or less function
as TRANSITIONAL/INTERIM FEDERAL/STATE GOVERNMENTS, by holding and
performing their respective Legislative and Executive duties under the existing
1999 military decreed Constitution (as amended) until both the new Federal and
Regional/State/Zonal democratic Constitutions are adopted and their stipulated
or mandated elections are held; and the legitimate results of those elections
shall be the only bases upon which all the new and legitimate respective
governments shall be constituted in accordance with the dictates of these new
Federal and Regional Constitutions.
NOTE:
In general, therefore, we in The Yoruba National Assembly strongly hold the
pragmatic view that if we need some more time to actualize each and every stage
of our proposals in order to get the constitution-making processes through to
success, it is infinitely safer and better for all principal parties and other
stakeholders to work out the modalities for such an extension of time. It is
better late than never to reinvent and truly federalize our constitutional
arrangements to properly and adequately enable present and future generations
cater for their own welfare, stability, unity, growth and development.
5. TO MAKE RECOMMENDATIONS ON LEGAL FRAMEWORK FOR THE CONFERENCE
On legal framework for the conference, we
advise as follows:
(i)
That there shall be TWO Bills from the Government to do the following:
(a) The First Bill to deal with
the enactment of an Act to make provision for the establishment of an Independent Constitution Conference Commission (otherwise
referred to and known as “The Constitution Conference Commission”) with full
powers of laws to drive the democratic processes of the production of the
Nigeria Federal and Regional Constitutions and restructure them for connected
purposes. It is quite instructive to note that your current Presidential
Constitution Advisory Committee is not a different type of ‘animal’ from this
Independent Constitution Conference Commission except only in regard to the
fact that your Committee has not yet been promulgated into Law that may give it
more powers, functions and resources!
This task should be calendarized to
take not more than one month – since the country can still boast of independent
men and women of undoubted knowledge and high moral integrity in every ethnic
Region/Zone/State of the country who can be trusted by the current Federal and
State Governments as their legal inheritors of their assumed legislative
sovereignty by unreservedly delegating to them, through appropriate amendments
of relevant Sections of the current 1999 Federal Constitution (as amended) -
especially Sections Eight and Nine - their very onerous and sensitive
responsibilities as currently enshrined under those two Sections. In view of
the making of a law by the National Assembly to enable the peoples of Nigeria
to, for the first time ever, give to themselves a Constitution, the importance
of the National Assembly has at any rate been highlighted and taken care of in
the constitutional process through their taking charge of this enabling
law governing the constitution-making processes.
Since the Legislature can legitimately
make law, then it means it can legally make law [such as a pragmatic law
amending Sections 8 and 9 of the 1999 constitution] to enable the people give
to themselves a valid constitution. The Legislature can determine the
content of such law (within its right to make law), the perimeters and terms of
such law. The Legislature can call for a public hearing to fashion out
such law as a vital beginning of legitimate, valid and lawful Constitution
making process. (See Appendix Three on pages 42 - 60 below).
NOTE:
By and through this first Constitution enabling Bill, the debates bedeviling
the futile disputes as to who has the custodial or sovereign power and authority
to frame or make the original Nigerian Constitution and later
amend the extant Constitutions would have been tactically navigated and
diplomatically avoided and put to final and lasting rest in every stakeholders’
beneficial interests. As a ‘win-win’ device, it is virtually the legislative
equivalent of the now prudent and familiar “doctrine of necessity” ably invoked
by the 6th Federal Legislative Assembly to resolve contentious
grey areas of the 1999 Constitution (as amended) concerning modes of succession
during the unfortunate and untimely death of President Musa Yar’Adua in the
Year 2011.
Due to the technical legal nature of
this Bill and for ease of reference, we have decided to provide your
Presidential Constitution Advisory Committee with a template of topics as
authentic samples that the Bill must cover as indicated hereunder (page 51) as
Appendix Three.
(b) The Second Bill to deal with the enactment of an Act to make provision for
convening an Independent Nationalities Constitutional
Conference (otherwise referred to and known as “The National
Conference”) of the people of Nigeria with full powers of territoriality and
for purposes of discussing and deciding any and all issues and matters affecting them and preparing a constitution
and matters ancillary thereto for consideration and adoption by the peoples of
Nigeria at each Regional/Zonal/State referendum.
This task should be calendarized to
take not more than one month.
Due to the technical legal nature of
this Bill and for ease of reference, we have also decided to provide your
Presidential Advisory Committee with a template of topics as authentic samples
that the Bill must cover as indicated hereunder (pages 60 - 70) as Appendix
Four.
6. TO MAKE RECOMMENDATIONS FOR LEGAL PROCEDURES AND OPTIONS FOR INTEGRATING
DECISIONS AND OUTCOMES OF THE NATIONAL CONFERENCE INTO THE CONSTITUTION
With respect to legal procedures for
integrating decisions and outcomes of the National Conference into the
constitution, we advise as follows:
(i) A referendum shall be held at each Regional/Zonal/State level to determine the
wishes of eligible Nigerian registered voters in a “YES” or “NO” vote on the
draft Federal and Regional/Zonal/State constitutions put before the citizens by
the National Conference Commission and Independent National Electoral
Commission acting on behalf of the National Conference.
(ii) Approval or disapproval of the Draft Constitutions by each Regional/Zonal/State
level shall be determined by a simple majority of “YES” or “NO” votes. A
majority of “YES” or “NO” votes for the purpose of the referenda shall mean a
simple majority of votes cast at the Regional/Zonal/State level with not less
than two-third of votes of total eligible voters and voting in each Region or
Zone or State – whichever “federating unit” is ultimately adopted by the
National Conference Delegates.
7. ADVISE THE GOVERNMENT ON ANY OTHER MATTERS THAT MAY BE RELATED OR INCIDENTAL
TO THE CONFERENCE
Through Public Enlightenment, we
strongly advise that all stakeholders in the Nigerian federation, including
especially the Federal and State Governments as well as civil society groups,
shall embark on systematic mass public education and mobilization of citizens
to promote the laudable goals and objectives of the National Conference as
follows:
(i) The public education programme
should involve use of public and private media structures, from newspapers to
radio/ television and the social media. This should explain the importance of
enhancing Nigeria’s unity through frank discussions on how to create a federal
constitution that citizens of all linguistic nationalities can own and feel
comfortable with, as distinct from the current constitution that has been a
source of tension among nationalities since it was decreed into existence by
military rulers in 1999. Mass public education is crucial to stem any
misunderstanding or distortion of the vision and thinking behind doing what
several countries across continents do regularly: re-creating and re-focusing
their countries for better governance and a more peaceful environment for
faster and sustainable growth and development.
(ii) The public mobilization
programme should involve the appointment and use of appropriate numbers of
Regional/Zonal/State facilitators in each and every one of the 774 local
governments to, again, explain the importance of enhancing Nigeria’s unity
through frank discussions on how to create a federal constitution that citizens
of all linguistic nationalities can own and feel comfortable with, as distinct
from the current constitution that has been a source of tension among
nationalities since it was decreed into existence by military rulers in 1999.
Mass public mobilization is crucial to stem any misunderstanding or distortion
of the vision and thinking behind doing what several countries across
continents do regularly: re-creating and re-focusing their countries for better
governance and a more peaceful environment for faster and sustainable growth
and development.
Finally and for the avoidance of doubt,
the Yoruba National Assembly would like to use this golden opportunity to
reiterate the long-standing position of the Yoruba people that the different
and differing nationalities in the Nigerian nations-state must collectively
grab this rare chance to really design a “devolved” process and product of
constitution-making by making the Nationalities the focal points of
organization such that those currently at the helm of our country’s political
affairs will be seen and trusted as implementing the avowed wishes of the
people.
We strongly support the Movement for
National Reformation warning “against the danger of turning the urgent and the
all important need for an authentic national conference into a make-shift
‘political summit’ designed to satisfy the short-time needs for the 2015
presidential elections. The country must not forget to remember that
substitute summits in the past became failed missions. An authentic national
conference should be a conference of the nationalities of Nigeria with advisory
inputs by national interest groups”.
Also like the National Consensus Group,
“we note, however, that we cannot run away from the agitations of our people on
the imperfect state of the Nigerian nation- state. Moreover, we note that
the legitimacy, authenticity and internal value of the present 1999
Constitution (as amended) is not without some inherent problems about its source
and contents. If the present government can make a
Constitution free from the challenge of legitimacy for Nigeria, the President
will be making the greatest contribution to the science of government. In the
hallowed interests of the citizens of Nigeria, it is not hard to do so; what it
needs is the will for it”.
Prayerfully, may the Supreme Being
guide and guard each and every one of you in this critically important assigned
duty to provide, once and for all time(?), a Road-Map to a resounding success
of the Nigeria Federation of our dream.
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