By UMORU HENRY & Levinus Nwabughiogu
Auwalu Yadudu is a constitutional lawyer, professor of law and teacher at Bayero University, Kano. He was a delegate representing North-west at the just concluded National Conference in Abuja. He served at the Deputy Chairman of the Conference Standing Committee on Law, Judiciary, Human Rights and Law Reforms. In this interview, he explains why the north was initially opposed to the adoption of the final report of the conference.
What was all this dust on the final report of the conference about?
From my own perspective, we came and found documents, one set having three volumes containing narratives of the report but, in particular the third volume contained what was called Draft Constitution. But in reality the third volume actually contained a proposed set of amendments to the 1999 constitution based on the resolutions and recommendations adopted by the conference. In an attempt to perhaps do a good job or to be very exhaustive, the conference secretariat went beyond their brief. They then, maybe, briefed some lawyers to draw up what they called Draft Constitution 2014 which is entirely different from volume three and which is therefore a different ball game.
Volume three is clearly a proposal to amend 1999 constitution. This other document is entirely, as it is called, a new constitution. So, the dust is in relation to that other document and slightly about this one because the title of this one, the volume three that we adopted today, also was wrong. So based on discussions and interactions that all stakeholders had between themselves and the leadership, it was made very clear. Not only the northern delegation, may be, because you are not privy, was opposed to a new constitution and, therefore, they were advised to ignore that other new constitution, but they should more appropriately designate volume three to be Proposed Amendment to 1999 Constitution and which is why the Chairman himself in the opening remarks yesterday said that the motion moved for the adoption of the report and the amendment to it were very, very explicit that we move for the adoption of the report with the correction made but that volume three be redesignated to be Proposed Amendments to the 1999 Constitution instead of the name Draft Constitution. It is not the same thing as the other one.
What about the contents?
On the contents, I give an example: Conference has taken a decision to create states whether you agree with it or not. So, they now came to the Section in the 1999 Constitution dealing with state creation to incorporate the decision of the conference. If you go to the section dealing with state police or police, they now proposed an amendment to amend that section to recognize state police. So, if you go to the section which has some relevance to the resolutions we took, they proposed amendment to it side by side. Now, that’s how you amend a constitution and that doesn’t make this a new constitution. When amended, it will continue to be 1999 constitution as amended.
Now, how did you finally come to terms with each other?
Very easy I think. First of all, as I said, the objection to adopting or considering what we did as a new constitution cuts across all regions, all stakeholders. It is just that the northern delegates had taken the issue quite early and disowned it. But we discovered that the objection to it cut across regions and opinions. So, with that objection, it became clear that everybody was of the view that, ‘ look, we have no power to initiate or adopt a new constitution but we do have powers to make recommendations that may go to amend an existing constitution’ and that is what we have done and that’s why members were agreeable to such a proposal. And then again, yesterday, the conference leadership met with different stakeholders and again what I have just described was reiterated to them and they were very agreeable to doing the right thing. Although there was no meeting of the mind between the person who proposed the motion and amendment, we were thinking along the same line and there was already this idea you have seen which is why Alhaji Maina Waziri who moved for the amendment did so.
So, assuming the controversial title was retained, would you have also insisted on your position?
Oh yes. Our position of disowning the entire process would have stood, in that we know we are not here to adopt a new constitution. Once that is cleared and what we are doing is what we have done and we have given effect to it, we have no problem with that.
Now settled, how would you describe the entire process?
We have to thank God and Nigerians and the good sense of all of us that we can be very intense, very adversarial in pushing for arguments and positions but we also have the capacity to recognize where we went wrong. As the chairman said, may be what they did was a mistake not of the mind in an evil way but an honorary mistake and, therefore, we were able to correct things. On the whole, I think it is important to recognize that we have met for over four months, we have dialogued, we have not agreed always on all issues but that’s how it should be. But at the end of the day, we were able to give and take and then for the good of this nation.
How do you place the conference vi-sa-vis 2015 general elections that are just months away?
My view initially was and still continues to be that the timing of the conference was wrong. It was ill- timed because stakeholders, when they discuss things, will have the impending elections in mind and therefore they tend to be emotive. And not only being emotive, the tendency in this country is that where there is an impending election, the incumbent tends to manipulate it. So, you have to be on your guard. That is why I think, the timing is wrong. That’s why the position; we took, particularly on rejecting a new constitution is very clear. It is not directed at the president because if you adopt a new constitution, it will benefit governors, even members of National Assembly; well, may be not necessarily members of the National Assembly but governors and that will be wrong.
Now, coming to your question, we were able to solve a potentially explosive problem in a very calm manner in that we didn’t throw away the baby with the bath water. We have thrown away the bath water which is fouled but we have retained the baby, meaning that, at least we can say there is some report we can look forward to implementing and it can inform the way we do things and also amend our constitution. Now, my apprehension, again about the timing is that, we have finished this thing today, the report will be ready in a week time. Now, don’t you ever expect anybody, not necessarily Jonathan or anybody who is in that position, to seek to implement it immediately. There is no way he can implement it. First of all, he will be busy with his electioneering campaign. Two, there are certain unpalatable things in the recommendations that he or anybody would not want to be seen to be promoting against his own nomination and also his electoral fortunes. This is natural. So, don’t expect him whether a new constitution or amendment to begin to implement it. And naturally also, by last count, they were saying that we made recommendations in thousands. So, you don’t expect them to do that.
Now, I should not be accusing the president alone of relaxing to implement it, even the members of the national assembly who would either make new laws to implement our decisions or who would embark on the constitutional amendment. Right now, they are engaged in constitutional amendment. I don’t see them taking in our recommendations in any part of what they are going to do.
This reminds me of the debate on how the outcome of the conference would be given the force of law. Did the conference eventually take a decision on that, whether through referendum or the National Assembly?
We didn’t take a decision and if you look at chapter 7 of the report we adopted, it leaves that question hanging. Therefore, I would suppose that unless if someone is able to persuade the National Assembly to introduce some elements of referendum or on their own account, they can. By the way, it is not only a constitutional issue, you have to even enact a law which recognizes a referendum as a mechanism for amending the constitution.
You also have to enable which ever organ you want to conduct the referendum to do so. At the moment INEC does not have that power. So, there is a whole lot of things to be done before you come to the use of referendum to implement the constitution.
As Somebody who champions the northern cause, would you wish a second term for President Jonathan as against the background that some northern leaders have hinged his re-election on the release of the abducted Chibok school girls?
I will not speak as a northerner but a Nigerian, a professional and a lawyer. I have spoken on president Goodluck Jonathan’s eligibility before. I maintain my position. My position is that he is ineligible. He is ineligible to contest not on account of what has happened with Chibok girls or anything but because by my reading of the relevant provisions in the constitution, he is deemed to be finishing his second term now and not doing his first term.
This argument is not one that I have to go through now, but suffice it to say, the reason is that it is novel. It has not happened before. That’s why it sounds strange.
The constitution is very clear that we do no elect a vice president. We elect the president. Jonathan was the vice president elected on the ticket of the president and he was sworn in as vice president but concluded the term of the president in the presidential ticket which he was part of from 2007 to 2011.
This is one angle to the argument. The second one which is very clear is that no one shall be allowed to be sworn in thrice as president and the question is not related to the number of years he has been sworn in. He was sworn in as Acting President but also as president after the death of Yar’ Adua. He was also sworn in as president when he won the second election .
So, my answer to your question is that from a purely, legal professional point of view of my assessment of his eligibility, he is ineligible.