Professor Ben Nwabueze (SAN), constitutional lawyer and leader of eminent group of Nigerians, The Patriots, in this piece, spells out the nature and character of the proposed National Conference, its primal purpose and modus operandi
In February 2005, President Olusegun Obasanjo suddenly convened what he called the National Political Reform Conference (NPRC), comprising motley of persons handpicked by himself and the State Governors as well some members of certain ethnic groups and other associations -–a completely undemocratic body with no mandate from the people or from the ethnic nationalities and civil society organisations. There was no enabling law establishing it and backing up its work..
Its role, as announced by the then Attorney-General of the Federation, Chief Akinlolu Olujinmi, SAN, in an interview in The Guardiannewspaper of February 9, 2005, was only to make “recommendations which the National Assembly and the Presidency will look into and see how to integrate these views into our Constitution.” In other words, the conference was simply part of a process of consultations to aid the Presidency and the National Assembly in the discharge of their functions with respect to the amendment of the Constitution. The NPRC thus differed totally in nature and character from the proposedNational Conference.
The NPRC was dogged by crisis and, after some months of deliberations, ended abruptly in confusion. Its failure is, to some extent, a product of defects in its character and structure. It was, in the apt characterisation of it by the print media, a mere talk-shop lacking power to take legally binding decisions, which made the entire exercise a farce, a charade.
The charade did not end with the abrupt disbandment of the NPRC, but was continued by National Assembly Joint Constitutional Reform Committee (JCRC) under the chairmanship of the Deputy Senate President, Senator Ibraham Mantu, whose main object was to obtain, by fraudulent manipulation, a semblance of public approval for the elongation of the President’s and State Governors’ tenure of office – an even greater farce. The JCRC conducted so-called public hearings for two days in one centre in each of the six geo-political zones.
PURPOSE AND A LEGAL FRAMEWORK
Being thus a palpable fraud, a farce, and programmed to come to nothing, the 2005 NPRC cannot in any way be equated with the proposed National Conference, or be used as a basis for saying that the latter will also come to nothing. As conceived, the proposed National Conference has a specific purpose, namely, to discuss and agree on the terms and conditions to be embodied in a new Constitution as the basis on which the diverse nationalities and peoples comprised in Nigeria can live together in peace, security, progress and unity as one country under a common central government. This is the primal purpose of the proposed National Conference, the crux or pivot of its agenda, and to which everything else is ancillary.
Given the above primal purpose for it, the initial problem facing the Conference is to fashion out a Legal Framework for convening and holding it, and for holding a Referendum to approve a Constitution adopted at the Conference. Without such a Legal Framework, the Conference cannot effectively take off as conceived, and will be doomed to fail as did the 2005 NPRC for the reason, among others, that, as earlier explained, there was no law establishing it and backing up its work.
The task of fashioning out appropriate Legal Framework for the proposed National Conference has, happily, been entrusted to a Presidential Advisory Committee. No Committee of this type, with wide-ranging Terms of Reference, was set up in 2005 as a prelude to the convening of the NPRC, and to lay the foundation for its successful outcome. In any case, as earlier stated, fashioning a new Constitution for Nigeria was never part of the agenda or purpose of the NPRC.
Some years ago, in October 2001 to be precise, The Patriots prepared such a Legal Framework in the form of a Bill, titled the National Conference and Referendum Bill, which it submitted to the Presidency and the National Assembly. The Bill, after some revision, was re-submitted to the two bodies in 2013. It was also submitted to the Presidential Committee on National Conference by letter dated 31 October, 2013, to help it in making recommendations to the President in terms of its Terms of Reference.
The long title of the Bill describes it as “A Bill for an Act to make provisions for convening a National Conference of the peoples of Nigeria for the purpose of discussing and adopting a new Constitution to be submitted for consideration and approval by the people of Nigeria at a Referendum and matters ancillary thereto.”
The long title thus provides a clear enough description of the character of the Conference proposed. This is reaffirmed by a declaration in a Preamble that the Conference is “a Conference of the nationalities and ethic groups comprised in this Nation so as to give them the opportunity to exercise their inherent right to determine democratically for themselves the Constitution by which they wish to be governed in one united Nigeria” (emphasis supplied). The Preamble further declares that the need for the Conference arises from the fact that the Constitution under which the country is governed “came into existence as a result of a Decree enacted by the Federal Military Government.”
The Bill then goes on to spell out the machinery and process for the selection or election of delegates, quorum at the Conference, conduct of proceedings, method of taking decisions, oath by delegates, Secretary and other support staff, laying before the National Assembly of draft Constitution passed by the Conference, publication of the draft to the public, and the process for holding a Referendum for the approvalof the Constitution by the entire mass of the people, which is to bestow legally binding force upon it.
A Referendum of the people to approvethe Constitution is the most fundamental aspect of the whole process. It is no doubt a novelprocess in the country, but that is what is legitimately due to the Nigerian – an opportunity, for the first time since the creation of the Nigerian state in 1914, to adopt, through Referendum, a Constitution by and for themselves in exercise of the constituent power inherent in them as a‘people, not just to make an input in the amendment of an imposed Constitution.
It is their birthright as a sovereign people, a birthright of which they have long been denied, first, by our British colonial masters, then, by our military masters, and, now, by our so-called democratic rulers in the Presidency and the National Assembly. There is no justifiable reason for continuing to deny them that birthright.
Given an existing legal order, constituted by a Constitution, the principle of the Rule of Law, by a Legislative Assembly, a Presidency, a Judiciary and other instrumentalities of government, such as we have in Nigeria, a National Conference to adopt a People’s Constitution, and a Referendum to approve the Constitution so adopted, must be authorised by a law enacted by the National Assembly and assented to by the President, in the terms set out in The Patriots’ Bill.
There is no way a Referendum can be held in the country under the existing legal order without an enabling law prescribing how it is to be conducted, its outcome and the force of the result in law. People cannot just troop out to vote in a referendum. Anything else outside the legal framework set out in The Patriots’ Bill can only take place by way of a revolution, such as happened in the eight African countries where the Conference took place outside the pre-existing legal order. It is doubtful, to say the least, whether such a revolution can take place in Nigeria, as things are at present. The impediments are too many and too great.
Sections 16(1) and 17(8) of the Bill deserve to be specially noticed. Section 16(1) provides : “The Chairman and Secretary of the National Conference shall certify the Draft Constitution as passed by the National Conference and lodge authenticated copies thereof with the President of the Federal Republic of Nigeria, the President of the Senate and the Speaker of the House of Representatives who shall cause it to be laid before the appropriate House but the said Draft Constitution shall not be subject to any change or amendment by any of these authorities.” (emphasis supplied).
Section 17(8) says : “……..the Draft Constitution for the Federal Republic of Nigeria adopted and passed by the National Conference shall become law and be binding on all persons and authorities when and if there is a majority of ‘YES’ votes at the Referendum approving it……..”
Thus, the National Conference and Referendum Bill prepared by The Patriots sets out in clear enough terms an appropriate Legal Framework for the proposed National Conference. The Presidential Advisory Committee may propose amendments to it.
THE VEXED QUESTION WHETHER THE CONFERENCE HAS THE CHARACTER OF A SOVEREIGN BODY
The Legal Framework for the convening and holding of a National Conference and a Referendum, as set out above, does not confer upon the Conference the character of a Sovereign National Conference. It is a contradiction, both in ideas and in terms, to demand a Sovereign National Conference when a sovereign government is still in place and in control; you must first displace or emasculate the latter before you can have an SNC, as was the case in the eight African states of Benin, Togo, Congo (Brazzaville), Niger, Mali, Chad, Gabon and Zaire in the period 1990 to 1993.
For the sake of a proper understanding of the meaning of the term, “Sovereign National Conference”, it needs to be explained that the provisions in The Patriots’ Bill to the effect that a Constitution adopted at the National Conference “shall not be subject to any change or amendment” by the National Assembly or the Presidency (section 16(1)), and that the Constitution, so adopted, “shall become law and be binding on all persons and authorities” directly it is approved at a Referendum (section 17(8)), do not make the Conference a sovereign body, in the strict sense of the term, inasmuch as the finality of its decisions and the legally binding force of the approval of its decisions by the Referendum derive from a law enacted by the sovereign legislative authorities under the country’s existing legal order.
But refusal by the National Assembly or the Presidency to enact into law, the provisions in sections 16(1) and 17(8) of the Bill, or to abide by them after their enactment into law, will be a test of the ability of the Nigerian people, in spite of the impediments, to assert and demonstrate their power and supremacy as the repository of the country’s sovereignty and the source of the sovereign power exercised by the legislative and executive organs of government. From the contest of power over this issue between the sovereign government and the people as the ultimate sovereign, the National Conference may emerge as a sovereign body.
In the meantime, and until such eventuality does occur, we will do better to get on with the job of working hard to ensure that the National Conference, operating under the Legal Framework set out in The Patriots’ Bill, adopts a suitable new Constitution for Nigeria, rather than allow ourselves to be bogged in the quagmire of the quibble whether the Conference is or is not a sovereign one.
ENSURING THE ADOPTION OF A SUITABLE NEW CONSTITUTION BY THE CONFERENCE
Ensuring that the National Conference adopts a suitable new Constitution for the country raises a problem perhaps more troublesome and more perplexing than the issue of fashioning out appropriate Legal Framework; the problem is not taken care of by fashioning out an appropriate Legal Framework. Unless the adoption of a suitable new Constitution for the country is ensured and is realised, it (i.e. the Conference) may become a talk-shop, as did the 2005 NPRC, without achieving its primal purpose, which is to give us a new Constitution.
It would thus be a failure, as asserted by those opposed to the idea. To ensure the accomplishment of this primal purpose, the Conference, when it convenes, must have before it, a Draft new Constitution to form the basis of its deliberations; without this, its meetings are bound to become a talk-shop and will not accomplish their primal purpose. Clearly, a situation where every Nigerian or every member of the Conference may submit a Draft new Constitution for consideration by the Conference will result in the Conference having before it too many Draft Constitutions, which may make it difficult for it to accomplish its primal purpose.
Thus, the problem boils down to the issue of a modus operandi for the Conference. What should be the Conference’s modus operandi, such as will enable it to adopt or will facilitate the adoption by the Conference of a suitable new Constitution for the country? Fortunately, the Terms of Reference of the Presidential Advisory Committee bring it within the competence of the Committee to recommend an appropriate modus operandi for the Conference, and how a suitable Draft may be prepared and brought before it for consideration.
The Committee is mandated “to make recommendations to government on structure and modalities for the proposed national dialogue/conference”. The word, “modalities”, seems apt to cover making recommendations on a modus operandi. This is supplemented by the omnibus clause in the Terms of Reference, viz “to advise government on any other matters that may be related or incidental to the proposed national dialogue/conference”. A modus operandi as to how it is to operate or function in order to accomplish its primal purpose is certainly a matter “related or incidental to the proposed national dialogue/conference”. We should therefore await whatever recommendations the Committee may make on this crucial question.
But, whilst the Committee’s recommendations are awaited, it seems clear that we cannot run away from the imperative necessity of having a Constitution Drafting Committee. The Okurounmu Presidential Advisory Committee itself is not envisaged as a Constitution Drafting Committee, and is neither intended nor mandated by its Terms of Reference to function as one. The job requires a specialist committee of experts.
A Constitution Drafting Committee was part of the modus operandi used in making the 1979 Constitution. The Federal Military Government (FMG) had in 1976, by an executive instrument, set up a Constitution Drafting Committee (CDC) of 49 members (the 50th member, Chief Obafemi Awolowo, declined to serve) composed of prominent lawyers, men and women knowledgeable in the principles and practice of statescraft, and other seasoned experts/specialists (the 49 Wise Men, as they came to be known), to prepare a Draft Constitution. A Draft was duly prepared by the Committee.
Thereafter, the FMG enacted a Decree establishing a Constituent Assembly – the Constituent Assembly Decree 1977 – corresponding more or less to the proposed National Conference. As constituted under the enabling Decree, the Assembly had 230 members, of whom 20 were appointed by the FMG, seven were the Chairman of the CDC (Chief FRA Williams SAN) and the chairmen of its six sub-committees (I was one of the six), and the remaining 203 members were elec
ted, not directly by the people, but by the local government councils acting as electoral colleges.
But the important point to note as regards the issue of modus operandi is that the Draft Constitution prepared by the CDC was laid before the Assembly and formed the authorised basis for its deliberations. The enabling law required the Draft Constitution to be presented in the Assembly in the form of a Bill, which the Assembly was to deliberate upon following a procedure of first and second readings and detailed clause by clause consideration in a committee of the whole Assembly.
The procedure allowed for amendments to be moved by members. Indeed, an amendment seeking to replace the presidential system proposed in the Draft with the parliamentary system of cabinet government was rigorously pressed upon the Assembly in two different forms and lost : see Proceedings of the Constituent Assembly, Official Report, vol. 11, cols 1943 – 55; cols. 1981 – 8.
The Chairman of the CDC and the Chairmen of its six sub-committees, sitting in the front benches, were assigned the responsibility of piloting the Draft Constitution Bill through the Assembly. It needs to be stated, despite the controversy that arose over the issue between the Assembly and the FMG, that the 1977 – 78 Constituent Assembly was not a mere deliberative body, and that the substance, content and form of the 1979 Constitution were the product of its decisions, notwithstanding a few changes surreptitiously slipped in by the FMG at the last minute after the Constitution Bill had been passed by the Assembly. Such, then, was the modus operandi used in making the 1979 Constitution.
Recognising the imperative necessity of having before the proposed National Conference a suitable Draft new Constitution to form the basis of its deliberations, I formed in the course of the Uyo National Political Summit the idea of getting a team of prominent lawyers, political scientists and other experts with specialist knowledge to work with me to prepare a suitable Draft new Constitution and, when the Draft is ready, to re-convene the Uyo Political Summit to have a thorough and critical look at it, and make such revisions and changes as may be considered necessary.
The re-convened Uyo Political Summit would be a kind of mini National Conference. Leaders from the various geo-political Zones attending the Summit will be duly inducted to mobilize and enlighten participants from their Zones on the provisions in the Draft in order to facilitate deliberations on it and its adoption at the National Conference proper.
As I said in my last letter, dated 31st October, 2013, to the 15 members of my Committee of lawyers, political scientists and other experts, drawn from the six geo-political Zones,, “unless the National Conference, when it convenes, has before it a Draft New Constitution, to be piloted by people well acquainted with its provisions and well inducted on what is necessary to be done to get it adopted, the Conference may lose focus and degenerate into a talk-shop and end without achieving anything, like the previous ones”.
My Committee will commence sitting on Tuesday 19 November, 2013 and work through that week, from 11 a.m. with a break for lunch. The venue of its meetings is my residence at Ajao Estate, Isolo, Lagos.
In preparing a Draft, we will look at Drafts prepared by Pronaco, The Patriots, the amendments/revisions made on the 1999 Constitution or under consideration by the National Assembly, and proposals from other quarters, as well as the constitutions of some other African countries. When my Committee completes its work, then, its Draft, with changes made on it by the re-convened Uyo National Political Summit, will be sent to the Presidency, the National Assembly, and the Presidential Advisory Committee if its life/mandate has not expired by the effluxion of the time given to it to wind up its work and turn in a report.
But there is a snag arising from the fact that my Committee has no official status. President Goodluck Jonathan may wish to consider giving recognition to the Committee by constituting it an official (i.e. a Presidential) Committee, and by inserting in the National Conference and Referendum Bill, a provision authorising the Draft new Constitution prepared by the Committee to be laid before the Conference and form the basis of its deliberations and decisions, and to be piloted before the Conference by the members of the Committee, just as was done in 1977/78 in the making of the 1979 Constitution.
CHAIRMANSHIP OF THE CONFERENCE
It needs hardly be emphasised that the character of the proposed National Conference, and its success or failure, would be determined, to a great extent, by the credentials, the personality and forcefulness of character of its Chairman. He or she must be a person with a considerable measure of acceptability in the Northern and Southern segments of the country, and whose mind, attitude and disposition are not known to be unduly conditioned or otherwise affected by the North-South Divide, which must be acknowledged as among the worst of the country’s many afflictions – a person who, therefore, commands the confidence of the generality of people in both segments.
In addition, he or she must be a person whose age and condition of health leave him or her sufficient physical strength as well as mental and emotional stability to be able to withstand the enormous strain and stress of piloting, mediating and moderating the proceedings of the Conference, which are expected to be stormy, even acrimonious, a task that would tax the patience of even the Biblical Job.
It is as well that the President, as the authority to appoint the Chairman of the Conference, should start right away to give serious thought to the choice of a person to chair it. The choice is not going to be an easy one, because there are not many Nigerians that meet the above criteria.
The chairmanship of the Conference may be said to be among the matters the Presidential Advisory Committee is mandated by its Terms of Reference to offer advice to the President under item (ii) thereof, viz to advise “on structure and modalities for the proposed national dialogue/conference”; in any case, it is certainly covered by the omnibus clause, viz “to advise government on any other matters that may be related or incidental to the proposed national dialogue/conference.”