“Towards a People’s Referendum”

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By SKB

Introduction
Not many may know that the words ‘For the good of the people’ was supposed to be the title of the last volume of Chief Obafemi Awolowo’s memoirs, which stood uncompleted before his passing on the 9th May, 1987. Nevertheless, it is a good byword for any politician unsure of his or her role in government, be it in the executive or the legislative arm of government. Friday is June 12, and that is Democracy Day here in Nigeria. Despite several challenges in operating our present system of government; we can still give ourselves some credit, for running our democracy for an unbroken span of 21 years. An unanswered question still remains as to whether or not we have truly matured as a democracy.

Can our politicians (collectively) proudly assert in good conscience, that they have genuinely been working ‘for the good of the people?’ In recent years there has been a deliberate attempt by the ruling class and their followers to subvert the interests of the majority, by instead upholding and defending their personal interests, policies and practices at their very expense. Unfortunately, this has now reignited an old argument centred on the merits of regional government, and the need to restructure and rewrite our present Constitution. In much the same vein, largely from an economic perspective, the world appears to be on the brink of a global depression following the Covid-19 Pandemic, and the Nigerian economy as a consequence, is now in more of a perilous state than ever before. These two issues seem to imply that it may be time for the people of this country to chart a new way forward and assess the political, economic and social consequences of our present day challenges.

Democratic Evolution Since Independence
We can only do this by taking control of our own destiny, by using the power of democracy to resolve the many pressing problems that afflict our daily lives. The usurpation or denial of people’s rights in Nigeria, has gone on for far too long. The 1960 Independence Constitution was a product of the departing colonial authorities; the 1963 Republican Constitution was decided upon entirely, by the Prime Minister and Regional Premiers of the day, who merely amended the 1960 Constitution to make it conform to Republican status.

The 1966 Coup usurped democracy by replacing it with military rule, while the 1979 Constitution was a missed opportunity for the people to adopt a Constitution for themselves, when the Obasanjo- led military administration amended several aspects of the elected Constituent Assembly’s deliberations. As for the present 1999 Constitution, it came into existence as a result of Decree 23 of 1999 enacted by the General Abdul Salam Abubakar-led military administration, and although the Constitution begins by declaring “We the People of the Federal Republic of Nigeria”, it is a bogus lie! We the People, had no hand in drafting the 1999 Constitution. It is not by any stretch of imagination an autochthonous Constitution. We have tried to fix this debacle through an unelected National Conference in 2014, but the deliberations and conclusions of that conference have since been archived and left to gather dust.

Legal Framework and Basis for a Referendum
The challenge for us today, is simply in rewriting our Constitution or restructuring our polity, whilst still having in place an existing 1999 Constitution (as amended)(1999 Constitution or the Constitution). When you have an existing Constitution and a system of governance in place, it would be unconstitutional for anyone to attempt to usurp the Constitution without first receiving a clear mandate from the people, the source and donor of all political power. Although ironic, the fact remains that, if the government and its organs are created by the 1999 Constitution, logic suggests that they can only be in possession of the power that is granted to them by the instrument from which their existence is derived.

There is no direct provision for a Referendum in our Constitution, but it is more than implied. We may criticise the 1999 Constitution for being imperfect, but there are several aspects to it that have not been fully explored or understood. What then is the legal framework that exists within the 1999 Constitution, that can provide ample basis for a future Referendum that may ultimately lead to a new and radically changed Constitution brought about by a people’s referendum?

Chapter of the 1999 Constitution, which contains the provisions on Fundamental Objectives and Directive States of State Policy provides some useful answers.

Section 13 of the 1999 Constitution states:
13. It shall be duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply provisions of this Chapter of this Constitution.

Furthermore Section 14 provides:
14. – (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
(2) It is hereby, accordingly, declared that-
(a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its power and authority.
Now, if the Constitution states that sovereignty belongs to the people, it stands to reason that the power can be given back to them whenever they ask or require it. The conundrum however, is that no one seems to know how to go about doing this. A clue can be found in the Second Schedule of the Constitution, which outlines the various items on the exclusive legislative list.

Item 60 provides as follows:
60. The establishment and regulation of authorities for the Federation or any part thereof-
(a) to promote and enforce the observance of the Fundamental
Objectives and Directive Principles contained in this Constitution.

Establishing a Referendum Authority under the Control of INEC
The combined effect of Sections 13 and 14 of the 1999 Constitution, as well as item 60 on the Exclusive Legislative list under the Second Schedule of the 1999 Constitution, is that both the executive and legislative arms of government are empowered to establish a Referendum Authority if deemed necessary ‘for the good of the people’ of the Federal Republic of Nigeria. I would even further state that, they are not only empowered to do so, but tasked with the duty and responsibility to do so, as outlined under Section 13 of the 1999 Constitution with regard to the Fundamental Objectives and Directive Principles of State Policy.

Some might argue that our courts have long decided that Section 6(6)(c) of the 1999 Constitution states that, except as otherwise provided by the Constitution, any issue or question as to whether any act or omission by any authority or person as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of the Constitution, is not justiciable. Since however, item 60 of the Exclusive Legislative list is spelt out elsewhere in the Constitution, Section 6(6)(c) does not apply, and issues relating to item 60 will serve as an exception to those provisions, and as such, is justiciable.

See Archbishop Okogie v AG Lagos State 1981 2 NCLR 337 and AG Ondo State v AG Federation & 35 Ors 2002 9NWLR Part 772.
Item 67 of the Exclusive Legislative list also provides that, laws can also be made with regard to any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution. Item 68 further states that, the National Assembly can also make laws with regard to any matter incidental or supplementary to any matter mentioned elsewhere in the Exclusive Legislative list. It is interesting to note that, Section 8 (3)(b)(c) and (d) of the 1999 Constitution provides for the use of a Referendum, when there is a proposal to create a new local government area. A Referendum Authority could therefore, also be used at State level whenever there is a request to create a new local government area. In summary, this means that the National Assembly has more than enough powers to establish a Referendum Authority, which could also be the precursor to a restructured, Federation or a radical new Constitution ‘for the good of the people’, if they exercise their right to have a Referendum.

Significantly, creating a Referendum Authority does not, in my view, dispense with the role of the National Assembly, who, depending on the regulatory framework ascribed to the Referendum Authority, may still have to sanction and approve a National Referendum. What the establishment of a Referendum Authority will do, is decentralise power and ensure that the people of the Federal Republic of Nigeria are allowed to exercise their power of sovereignty, and use it to take control of their destinies and resolve the many pressing problems afflicting their lives. Without the establishment of a Referendum Authority, the public is completely excluded from the possibility of asking for a Referendum, which cannot be right, as it is against the purpose and spirit of the 1999 Constitution. Therefore, the purpose of a Referendum Authority would be to reassert the suppressed rights of the people of this country, which have been trampled upon for decades, due to our inability to interpret the Constitution correctly. The Proposed Referendum Authority, does not necessarily have to be set up to be an Independent Statutory Authority. Part one of the Third Schedule to the 1999 Constitution, outlines the Federal Executive Bodies under Section 153 of the 1999 Constitution. Section 14 of the Third Schedule provides for the Independent National Electoral Commission (INEC). Section 15 of the same Schedule outlines the power of the INEC.

Subsection 15 (i) states as follows:
(i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly
In other words INEC could be given the responsibility by the National Assembly to manage a Referendum Authority within the purview of its responsibilities, without the need to set up a separate Act for this purpose. INEC will, among other things, determine the criteria and threshold for a National Referendum.

Conclusion
The most pernicious of practices, are those that continue to afflict us out of indifference. In calling for a Referendum Authority, which ideally should be embodied within INEC, a trite little point about having a Constitution for the benefit of the people is being made. In the same vein, a much more interesting point about not having to amend the 1999 Constitution in order to have a Referendum, is equally being made. When the power of direct democracy is given to the ordinary man in the strict sense, it means that as a people, we are free to do or request what those in the corridors of power might not necessarily approve, or do what the average politician or you or I might think is beyond their understanding. For far too long, we have tolerated a system that is designed to allow perceived leaders of thought, to make fundamental decisions for us.

That is simply unfair to the many generations of unborn Nigerians. We need to build a country that works for everyone. Leaders, however wise, cannot change Nigeria, unless “We the People”, bring ourselves to the realisation that, we alone have the capacity to shape our own destinies and until we do so, nothing can really be achieved. The people need to be asked whether they want to fundamentally reshape our political structure, and as a consequence, our Constitution. A People’s Referendum is an important plank, in achieving the above objectives.