Continued from last week

This is the concluding part of the paper by Prof. Ben Nwabueze, the leader of The Patriots, on Nigeria’s unity.

In the aftermath of the bloody conflicts of 1991 – 93, the bloodiest in the country’s more than 3,000 years of recorded history, the people of Ethiopia faced the fundamental issue squarely, and the solution they worked out at meetings of the ethnic nationalities, based on the tragic lessons of the bloody conflicts, was embodied in the 1995 Constitution, which is still, 17 years after (1995 – 2012), the basis of the continued corporate existence of the diverse “Nations, Nationalities and Peoples” comprised in Ethiopia.

We in Nigeria must likewise squarely face that fundamental issue, and not expect that the grave threat it poses to our corporate existence can be made to go away by the gimmick of the National Assembly’s constitution review exercise. (In its 2013 Report, the Washington – based Global Advocacy and Campaigning Organisation ranked Ethiopia among the top performing countries in Africa; Nigeria, with all its resources, is not among the performing countries named.)

*Prof. Ben Nwabueze
*Prof. Ben Nwabueze

LEGAL AUTHORITY FOR  NATIONAL CONFERENCE AND FOR THE MAKING OF A PEOPLE’S CONSTITUTION

The power of the National Assembly to make a law for the convening and holding of a National Conference is not in dispute, and can hardly be disputed. It derives from its power to “alter” the provisions of the Constitution conferred on it by sections 8 and 9 of the Constitution. Certainly, the power to make a law to alter the provisions of the Constitution necessarily imports the power to make a law authorising the convening and holding of a Conference to deliberate on proposals or issues relating to the making of a law with respect to such alteration.

However, the power of the National Assembly to make a brand new Constitution or to make law authorising the making of a new Constitution to replace the 1999 Constitution is disputed. The disputation is in order if the Assembly’s power in that regard is viewed solely from the standpoint of its power under sections 8 and 9. For, quite indisputably, a power to “alter” a thing does not, and cannot reasonably, import power to replace it with something else entirely new.

But the National Assembly’s power in this regard is not limited to its power under sections 8 and 9 of the Constitution. The 1999 Constitution is enacted by Decree 24 of 1999, titled Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999, section 1(1) of which provides that “there shall be for Nigeria a Constitution which shall be as set out in the Schedule to this Decree”.

The only other provision of the Decree, section 1(2), simply says that “the Constitution set out in the Schedule to this Decree shall come into force on 29th May, 1999”. All that needs to be done is to repeal Decree 24, with its section 1(1), and the 1999 Constitution will stand abolished, and be simultaneously replaced with a brand new Constitution.

To reiterate for purpose of emphasis, the repeal of section 1(1) of the Decree, which establishes the 1999 Constitution by way of a Schedule to the Decree, abolishes that Constitution, which will then be simultaneously replaced with a new one. The replacement has to be done
simultaneously, as otherwise the National Assembly itself will no longer be in existence to enact a new Constitution or to authorise its making.

REPUBLICAN CONSTITUTION

That was what was done in 1963 in the making of the 1963 Republican Constitution to replace the 1960 Independence Constitution which was established by way of a Schedule to an Order-in-Council made by the British Government (section 2), corresponding to the making of the 1999 Constitution by way of a Schedule to Decree 24; in other words, Decree 24 corresponds to the British Government’s Order-in-Council. The Nigerian Parliament in 1963 enacted a law repealing the provision of the Order-in-Council, section 2, that established the Independence Constitution by way of a Schedule to itself; the repeal abolished that Constitution, which was then simultaneously replaced with the 1963 Republican Constitution.

The use of the 1963 method for our present purpose raises the question whether the National Assembly has the power to do what the Nigerian Parliament did in 1963, i.e. to repeal section 1(1) of Decree 24 and to enact simultaneously a brand new Constitution to replace the 1999 one scheduled to the Decree. The Nigerian Parliament was able to do what it did in 1963 by relying on a power given to it by section 18 of the 1960 British Order-in-Council to “alter any of the foregoing provisions of this Order”, including of course the provision in section 2 which established the 1960 Independence Constitution by way of a Schedule to the Order; the Nigeria Independence Act 1960 made by the British Parliament also conferred the same power on the Nigerian Parliament in its section 2.

POWER TO REPEAL

The National Assembly certainly does possess the power to repeal Decree 24 of 1999, with its section 1(1), and by doing so, abolish the 1999 Constitution and simultaneously replace it with a brand new Constitution. Its power to do so derives from sections 4(1) and 315(1)(a) & (4) of the 1999 Constitution. Section 4(1) provides that “the legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly”; what is so vested in the National Assembly by section 4(1), it is important to note, is the legislative power, not of the Federal Government in a federal system, but of the Federal Republic of Nigeria, a term wider than the Federal Government. The provision in section 4(1) is followed by that in section 4(2) & 4(4) that “the National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List” and the Concurrent Legislative List set our in “the Second Schedu
le to this Constitution” – the term “Federation or any part thereof”, as used in the two subsections, refers, not to a political entity, as does the term “the Federal Republic of Nigeria”, but simply to territory inhabited by people. People never bother to consider why the provision in section 4(1) is put there, and what purpose it is designed to serve that is not served by section 4(2) & (4).

It seems not to be generally realised that section 4(1), (2) and 4) of the Constitution invests the National Assembly with a dual capacity, a dual capacity that is somewhat confounded by those subsections themselves. The National Assembly is, in one capacity, the legislative arm or branch of the Federal Government in a federal system, (section 4(2) & (4)), in which capacity it corresponds to the House of Assembly of a State; in another capacity, it is the legislative authority for the Federal Republic of Nigeria as one “indivisible” sovereign state regard less of the “division” into States; its capacity in this latter respect derives from the vesting in it of the “legislative powers of the Federal Republic of Nigeria”, a political entity, under section 4(1). It is the entire legislative sovereignty of Nigeria that is vested in it, although the exercise of the power is regulated by section 4(2), (3) & (4). It is important to note in this connection that the power of the National Assembly to make law for the pe
ace, order and good government of Nigeria, the Federal Republic of Nigeria, by virtue of section 4(1) is not limited to matters specified in the Exclusive and Concurrent Legislative Lists; it includes under section 4(4)(b) “any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution”; it is in this respect and other respects mentioned in other provisions that the power vested in it by section 4(1) may come into play.

Section 4(1) has to be read in conjunction with section 2(1), which provides that “Nigeria is one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria”. (the italic is for emphasis) It would be inconceivable and a palpable contradiction of the status of a “sovereign state” that anything whatsoever should be outside or beyond the legislative sovereignty of the Federal Republic of Nigeria as a sovereign state. That would constitute, not just a contradiction, but a denial, of the country’s status as a sovereign state. That is the reason why section 4(1) is put there, and it explains the purpose it is designed to serve.  The National Assembly has therefore power to repeal the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999 and thereby abolish the 1999 Constitution scheduled to it under its section 1(1), and simultaneously replace it or have it replaced with a brand new Constitution, as the Nigerian Parliament did in 1963 in regard to th
e 1960 Independence Constitution established as a Schedule to an Order-in-Council made by the British Government.

EXISTING LAW

The Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999 is “an existing law” under section 315(4) of the 1999 Constitution, which defines “existing law” as “any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this” Constitution comes into force. The 1999 Constitution came into force on May 29, 1999 and the Decree on May 5, 1999. By section 315(1), “an existing law……..shall be deemed to be (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws”. The Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999, being a law on a matter with respect to which the National Assembly has power under section 4(1) & (4)(b) to make law, is deemed to be an Act of the National Assembly, which can therefore make a law repealing it. It would be inconceivable and a manifest absurdity that there should be an “existing
law,” as defined in section 315(4), which is beyond the power of the legislative authorities of the sovereign state of Nigeria to repeal.

Concluded

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