Unquestionably, the most fundamental topic and issue of discussion in our polity today centres on the need to either restructure our Government, and devolve powers away from the centre, or alternatively amend the 1999 Constitution appropriately. Last weekend, President Muhammudu Buhari weighed in on this argument, when he was reported to have said that no government will cede its authority to people that are not elected, and was further quoted as saying that those calling for restructuring and secession are ignorant. The President made his thoughts known at the launching of the Kudirat Abiola Sabon Gari Peace Foundation, held at the Congo Conference Hotel in Zaria last Saturday. He made his position known in an address made by the Executive Secretary of the Revenue Mobilisation Allocation and Fiscal Commission, Alhaji Mohammed Bello Shehu. President Buhari was quoted to have said:
“If you ask many Nigerians what they are going to restructure, you will find out that they have nothing to talk about. Some of them have not even studied the 1999 Constitution. The 1999 Constitution is about 70-80% the 1979 Constitution… It is okay to demand for restructuring, renewal of the Constitution, but what is most important now is, how States make local governments functional, how can States make the Judiciary and Legislative arms independent… So that If this were to be done, some of those issues like insecurity, you will find a solution where local government chairmen, in collaboration with traditional rulers, will form a chain of communication to figure out what is really happening”.
“There is no government in the world, that would cede its authority to people that are not elected. You are telling us to dissolve a system and call for an obscure conference to come and discuss how we can move forward as a nation; that can never be done, and no country would agree to that.”
Direct Challenges
In making these remarks, the President has thrown a direct challenge to those requesting and agitating for restructuring. Many professional bodies and leaders of thought such as: the Patriots, Afenifere, Ohaneze, the Nigerian Bar Association etc. have been arguing about restructuring for several years now, without ever fully explaining how it can be achieved. We all follow debates on satellite television through news outlets such as: Sky and CNN. We also know that you cannot even begin a debate about restructuring on those sorts of platforms, if you cannot articulate and explain how you intend to achieve it.
The challenge for us today, is twofold. The first is simply about rewriting our Constitution or restructuring our polity, whilst having in place an existing 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. If the Government and its organs are created by the 1999 Constitution (as amended), then it is logical 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 (as amended) for being imperfect, but there are several aspects to it that have not been fully explored or understood.
The second challenge, is whether there is a legal framework that exists within the 1999 Constitution (as amended), that can provide ample basis for a future Referendum that may ultimately lead to a new and radically changed Constitution?
The Chilean Example
It is not true as reported by the President or the Presidency as the case may be, that no country in the world would cede its authority to people that have not been elected. A most recent example of where this has taken place, is the Republic of Chile. The current Constitution of Chile was approved by Chilean voters in a controversial plebiscite on September 11, 1980, under the military dictatorship of Augusto Pinochet. It was partially enacted on March 11, 1981, and has been fully effective since March 11, 1990. It was amended considerably on August 17, 1989 (via referendum) and on 22 September, 2005 (legislatively), and also in 1991, 1994, 1997, 1999, 2000, 2001 ,2003, 2007, 2008, 2009, and 2010. It is Chile’s eighth Constitution, replacing the Constitution of 1925. The Chilean people in the 2020 national plebiscite, overwhelmingly voted to draft a new constitution. On October 25, 2020, a referendum was held which saw Chilean voters overwhelmingly approve 78% in favour of writing a new constitution by a convention. This draft Constitution is to be approved or rejected, by another popular vote referendum in 2022. A Constitutional Convention to write the new constitution, was elected in May 2021.
There is no conceivable reason why Nigeria cannot follow the Chilean example. If anything, unlike Chile, Nigeria did not even ratify the 1999 Constitution through a plebiscite or Referendum, before it began implementing it. Therefore, it is rather ironic for any government that came to power under the 1999 Constitution, to state that “it would not cede its authority to people that are not elected” The question therefore, is whether the Chilean model can be achieved here in Nigeria.
Chapter II of the 1999 Constitution (as amended), which contains the provisions on the Fundamental Objectives and Directive Principles of State Policy provides some useful answers.
Section 13 of the 1999 Constitution (as amended) states:
13. It shall be the 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 the 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 amended), as well as item 60 on the exclusive legislative list under the Second Schedule of the 1999 Constitution (as amended) 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 (as amended) 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 as amended 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 11 of the Constitution is not justiciable. Since 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 is as such 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.
Creating a Referendum Authority
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 (as amended) 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’.
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, will 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 (as amended).
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 as amended outlines the Federal Executive Bodies under Section 153 of the 1999 Constitution as amended. 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 Commission.
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.
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. In short, those calling for restructuring are not ignorant; they have simply failed to articulate and explain how to achieve it.
